Legal Feeds Blog
This year, hundreds of people attended the Women's Legal Education and Action Fund annual Persons Day Breakfast Gala, at the Sheraton Centre Hotel, on Oct. 19. Keynote speaker Margaret Atwood spoke about her thoughts on the upcoming United States election — including her analysis of Donald Trump.
This year, hundreds of people attended the Women's Legal Education and Action Fund annual Persons Day Breakfast Gala, at the Sheraton Centre Hotel, on October 19. Keynote speaker Margaret Atwood spoke about her thoughts on the upcoming United States election — including her analysis of Donald Trump.
Man found shot dead in crashed SUV in west-end Toronto, Canadian Press
New Brunswick Court of Appeal to decide Dennis Oland's fate, Canadian Press
- Move comes after increasing calls to fill vacancies
The federal government announced the appointment of a slew of judges across the country Thursday.
|Jasmine Akbarali has been appointed to the Superior Court of Justice.|
The appointments came after the government faced increasing calls to quickly fill judicial vacancies amidst worsening court delays and new caps put in place by R. v. Jordan.
Justice Canada also announced some changes to the judicial appointment process.
The government announced three representatives of the general public, who could be lawyers or non-lawyers, will sit on Judicial Advisory Committees in an effort to making the process more transparent.
Other reforms the government is planning for JACs include publishing data on judicial applicants and appointees as well as putting an emphasis on making sure JACs represent the diversity of Canada.
Provincial court judge Timothy Gabriel was appointed to the Supreme Court of Nova Scotia in Halifax.
Pamela MacKeigan, a senior solicitor with the Department of Justice on Nova Scotia, was appointed to the Supreme Court of Nova Scotia’s family division in Halifax.
Ann Smith, a partner with Burchells LLP, has been appointed to the Supreme Court of Nova Scotia in Halifax.
Patrick Healy, a judge of the Court of Quebec, has been appointed to serve on the province’s Court of Appeal.
Alberta Court of Queen’s Bench Justice Michelle Crighton has been appointed to the Alberta Court of Appeal in Edmonton.
Alberta Court of Queen’s Bench Justice Jo’Anne Strekaf has been appointed to serve on the Alberta Court of Appeal Edmonton. She will also serve as a judge on the Court of Appeals for the Northwest Territories and Nunavut.
Kevin Feehan, a partner with Dentons Canada LLP, has been appointed to the Alberta Court of Queen’s Bench in Edmonton.
James Eamon, a partner with Gowling Canada, has been appointed to the Alberta Court of Queen’s Bench in Calgary.
Jolaine Antonio, an appellate counsel with Alberta Justice, has been appointed a judge of the Alberta Court of Queens’ Bench in Calgary.
Prosecutor George Fraser has been appointed to the Alberta Court of Queen’s Bench in Edmontons.
Bonnie Bokenfohr, the interim executive director of the Edmonton Police Commission, has been appointed to the Alberta Court of Queen’s Bench in Edmonton.
Ontario Superior Court Justice Gary Trotter has been appointed to the Ontario Court of Appeal.
Justice James Turnbull, the regional senior judge for the Central South Region of the Superior Court of Justice, has been transferred back to the regular complement in Hamilton to replace Justice Harrison Arrell, who has been appointed regional senior judge for the Central South Region.
Peter Cavanagh, a senior partner with Dentons Canada LLP in Toronto, has been appointed to the Superior Court of Justice in Toronto.
Tracy Engelking, a senior counsel with the Children’s Aid Society in Ottawa, has been appointed to the Superior Court of Justice and a member of the Family Court in Ottawa.
Jasmine Akbarali, a partner with Lerners LLP in Toronto, has been appointed to the Superior Court of Justice.
Joseph Di Luca, a partner with Di Luca Dann LLP in Toronto, has been appointed to the Superior Court of Justice in Newmarket.
Lene Madsen, a principal mediator with Bluewater Mediation in London, has been appointed to the Superior Court of Justice and a member of the Family court in Hamilton.
Lore Mirwaldt, a partner with Mirwaldt & Gray in Winnipeg, has been appointed to Her Majesty’s Court of Queen’s Bench for Manitoba in Winnipeg.
David Kroft, a lawyer with Filmore Riley LLP in Winnipeg, has been appointed to Her Majesty’s Court of Queen’s Bench for Manitoba in Winnipeg.
Candace Grammond, a partner with Pitblado LLP in Winnipeg, has been appointed to Her Majesty’s Court of Queen’s Bench for Manitoba in Winnipeg.
Heather MacNaughton, a master of the Supreme Court of British Columbia in Vancouver, has been appointed to the Supreme Court of British Columbia in Vancouver.
Catherine Murray, a Crown counsel, has been appointed to the Supreme Court of British Columbia in Vancouver.
Joyce DeWitt-Van Oosten, an assistant deputy attorney general with the Ministry of Justic in Victoria, has been appointed to the Supreme Court of British Columbia in Vancouver.
The Supreme Court of Canada has provided direction in multidisciplinary class action proceedings, affirming that, in collaborating and co-ordinating such proceedings across multiple jurisdictions, the courts have broad and flexible powers through provincial class action statutes and the inherent jurisdiction of the court.
|Harvey Strosberg hails the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler.|
The SCC rendered its decision today in two companion class action proceedings brought on behalf of individuals affected by the “tainted blood” tragedy of three decades ago.
“This judgment is a breath of fresh air,” says Paul Pape of Pape Barristers PC in Toronto, counsel for Dianna Louise Parsons (deceased), the representative plaintiff in Ontario and several other jurisdictions across Canada. “The SCC has fully embraced class proceedings as a procedural tool to enhance access to justice, without any equivocation at all. It’s important for the country and the administration of class proceedings.”
Endean v. British Columbia and Parsons v. Ontario were class actions on behalf of individuals infected by the Canadian blood supply with hepatitis C between 1986 and 1990. A pan-Canadian settlement agreement was reached in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts.
In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement, but British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges didn’t have jurisdiction to conduct hearings outside their home province. However, motion judges in each of the three jurisdictions agreed that superior court justices could sit in another province with their judicial counterparts to hear the settlement agreement motions.
Ontario and British Columbia appealed. The Ontario Court of Appeal agreed with the motions judge that the basis for the power to conduct a hearing outside the province was the superior court’s inherent jurisdiction, but it concluded that a video link was required between the out-of-province and Ontario courtrooms. The British Columbia Court of Appeal found that common law prohibited superior court judges from sitting outside the province at all.
The Supreme Court judgment, written by Justice Thomas Cromwell, who retired in September, allowed the representative plaintiffs’ appeal and dismissed Ontario’s cross-appeal.
Pape and Harvey Strosberg of Sutts Strosberg LLP in Windsor, Ont., who is another counsel for the Parsons class, hail the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler, then sitting as a judge of the Superior Court of Justice.
“This is considered to be a contentious decision; the Supreme Court of Canada has vindicated him entirely,” says Pape.
Strosberg also noted the SCC’s rejection of the necessity of the video link to connect courtrooms in different jurisdictions and the dismissal of the common-law argument. “In England, in 1858, when B.C. was incorporated . . . the common law prohibited judges in England from sitting outside of England,” says Strosberg. In this decision, the SCC justices have said “maybe it was good in 1858, but not today. Common law has changed.”
Sharon Matthews of Camp Fiorante Matthews Mogerman LLP in Vancouver is counsel for Anita Endean, the representative plaintiff in British Columbia. She also sits on the Canadian Bar Association’s National Class Action Task Force, which is looking at multijurisdictional class actions.
“The SCC has interpreted s. 12 in most of the common-law statutes [for class-action proceedings] as giving very broad and flexible powers to the courts,” she says. Some courts dealing with s. 12 “have limited the instances and the purposes for which it can be used, and I think the statements in this [SCC] case — that those provisions should be seen as very broad and providing the courts with flexible powers — are important statements.
“What this case says is the way we deal with cases is not frozen in time,” says Matthews. “It will evolve to meet the demands of cases before the courts, in the context of the real imperative for co-ordination for superior courts with overlapping jurisdictions.”
Despite the dismissal of an injunction request attempting to stop the Cleveland Indians baseball team from using its name and logo during the play-off game against the Toronto Blue Jays on Monday, lawyers involved in the case say the fight is far from over.
|Rebecca Jones, partner at Lenczner Slaght Royce Smith Griffin LLP, says the important thing is that failing the test for the injunction is different from a determination on the merits of their case.|
The issue centres on the team’s logo, Chief Wahoo, a red-skinned cartoon head with a toothy grin and a feathered headband considered to be a caricature of an aboriginal man, combined with the name Indians. Canadian indigenous activist Douglas Cardinal filed human rights complaints with both the Human Rights Tribunal of Ontario and the Canadian Human Rights Tribunal, as well as an application for an interlocutory injunction with the Ontario Superior Court of Justice pending the outcome of the human rights complaints, against Cleveland Indians Baseball Co. Ltd. Partnership, Major League Baseball and Rogers Communications Inc.
Cardinal, who is of Blackfoot descent, wants a ban on the use of the logo and the word Indian in association with that logo, which the case argues is racist and discriminatory under Canadian law.
“What we’re saying is when you deliver a service in Ontario, whether it be Rogers through the Rogers Centre or its broadcast, or the Cleveland team by coming and participating in that service, when you’re in this province you have to deliver that service without discrimination,” says Rebecca Jones, partner at Lenczner Slaght Royce Smith Griffin LLP and counsel for Cardinal.
The factum for the injunction says the aim is to end, at least in Canada, “the use of a racist name and logo that has no place in Canadian society.”
It goes on to say the use of the name and logo “discriminate, harass, and incite discriminatory conduct against persons of Indigenous descent” and argues without the injunction, the offensive name and logo will be given an “unprecedented platform in Canada. That will further perpetuate and normalize discrimination against Indigenous Peoples.”
Justice Thomas McEwen has yet to give reasons for his ruling.
Another of the lawyers representing Cardinal, Paul-Erik Veel also of Lenczner, says he was disappointed with the judge’s decision, but adds the rejection of the injunction does not necessarily touch upon whether the name and logo are discriminatory.
“The question of whether an injunction is appropriate involves a lot of considerations beyond the merits of the case and one of the things our opponents argued quite strenuously was all of the practical problems that could emerge if an injunction was granted,” he says.
"Having to make the last minute changes on three hours’ notice they said would pose significant inconvenience and would essentially be impossible.”
Jones says the important thing is that failing the test for the injunction is different from a determination on the merits of their case. She says applications to the human rights tribunals were filed on Oct. 14.
Some of the allegations relate to the broadcast of the offensive logo and team name, which is a federal issue, while hosting the game in Ontario sees the matter also fall under provincial jurisdiction, which is why applications were filed with both federal and provincial human rights tribunals.
“Under Ontario human rights law you can’t have discrimination in the delivery of a service and there are various grounds of discrimination that are prohibited,” she says.
“What’s going to be before the human rights tribunal is whether or not offering a service to the public — which is a sports event — whether or not using the Chief Wahoo logo and in particular the Chief Wahoo logo in association with the name Indians, constitute discrimination in the delivery of a service.”
Jones, who says it’s an important case about racial discrimination in the delivery of services in Ontario, points out they aren’t seeking anything that would have an “extra-territorial effect” by impacting use of Cleveland’s name and logo in other jurisdictions.
“If the human rights commission found in our favour what it would mean would be that while the team is playing in Ontario, they would play using their jerseys that contain the C logo which they’ve identified as being their primary logo in any event,” Jones says.
They already have various types of jerseys, she says, including ones that say Cleveland across the chest. The team would have to wear jerseys that combined their C logo and the word Cleveland instead of jerseys that say Indians and Chief Wahoo. Similarly, when broadcast to the Ontario public, the broadcast would call the team Cleveland and use the C logo.
The legal reasoning of Newfoundland Court of Appeal Justice Malcolm Rowe is front and centre in a Crown appeal in a sexual spousal assault case the Supreme Court of Canada is scheduled to hear early in 2017.
The nominee for the Supreme Court is alleged by the Crown to have made a number of legal errors in a judgment issued this spring in R. v. S.B. Rowe wrote the majority decision, which declined to order a new trial for a man acquitted by a jury of assault, sexual assault and weapons charges.
Rowe, with Justice Charles White concurring, outlined several legal errors made by the trial judge, particularly in the application of s. 276 of the Criminal Code that resulted in a number of improper questions being put to the complainant. However, in the 2-1 decision, Rowe and his colleague upheld the acquittal because of what they said were inconsistencies in the trial testimony of the complainant.
“Notwithstanding the serious errors made by the trial judge outlined above, the jury verdict should not be set aside. I have reached this conclusion with reluctance given the unfair manner in which the complainant was dealt with,” wrote Rowe in the Court of Appeal ruling issued this spring.
The Newfoundland Ministry of the Attorney General, in its factum filed with the Supreme Court, is arguing that the majority ruling applied the wrong legal test and placed itself in the jury room.
“In effect, the majority of the Court of Appeal transformed itself from the appellate court to the jury,” writes Iain Hollett, a lawyer with the special prosecutions office of the ministry.
The trial “demonstrated yet again, why section 276 of the Criminal Code was enacted,” writes Hollett. “Despite the unanimous finding that the use of prior sexual history evidence fed the first of the twin myths in a way that was ‘beyond redemption’ and that the decision to exclude evidence rebutting the allegation of recent fabrication “undermined the truth-seeking function of the trial,” the majority of the Newfoundland and Labrador Court of Appeal, refused to order a new trial because C.M.’s [the complainant] impugned credibility "could" give rise to a reasonable doubt,” argues the Crown.
At trial, Justice Robert Stack permitted the defendant to ask about text messages between the complainant and a third party with whom she had an affair. The trial judge also ruled that the complainant could be questioned about the transcript of a private sex tape of her and the accused, for the purposes of determining her “attitude” toward a specific sex act.
The jury was not permitted to see the sex tape, but lengthy and graphic passages were read out from the transcript during the trial.
Rowe, in the majority Court of Appeal judgment, concluded that the trial judge erred in permitting questions about the text messages and sex tape. However, because of the inconsistencies in the testimony of the complainant, there was not a “nexus” between the legal errors and jury acquittal. In dissent, Chief Justice Derek Green concluded that the Crown appeal should be allowed and a new trial ordered.
The Newfoundland Crown argues that by “weighing” the inconsistencies of the complainant’s testimony, the majority did exactly what the Supreme Court said in R. v. Morin that an appellate court could not do — try to predict with certainty what happened in a jury room.
Rosellen Sullivan, who represents S.B., is asking the Supreme Court to uphold the acquittal. The Crown did not meet “the high onus of satisfying the court that the trial judge’s errors might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal,” says Sullivan in written arguments filed with the court last month.
“Jury decisions must be given considerable deference,” adds Sullivan, a lawyer at Sullivan Breen King in St. John’s.
Rowe will appear next week before the House of Commons Justice and Human Rights committee before he is sworn in as a Supreme Court justice. The Supreme Court is scheduled to hear the appeal in R. v. S.B. in March.
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