Legal Feeds Blog
Two-thirds of Quebecers in favour of gun registry: survey, Canadian Press
Rise of private surveillance cameras point to legal limbo, Vancouver Sun
Protecting the safety of women should take priority when there is an accusation of sexual misconduct in the health profession, the British Columbia Court of Appeal has ruled.
|‘We are pleased that the Court found that women’s allegations of sexual misconduct must be taken seriously,’ says Raji Mangat, director of litigation for West Coast LEAF.|
On Monday the B.C. Court of Appeal issued its decision in Scott v. College of Massage Therapists of British Columbia in a case that has implications for other regulated health professions. It provides some clarity around when and what circumstances might be appropriate to apply interim conditions on a practitioner involved in an accusation of sexual misconduct pending a disciplinary hearing.
In the case, the complainant alleged that her massage therapist engaged in sexual misconduct during a massage therapy session.
The College Of Massage Therapists of British Columbia received a complaint on Oct. 8, 2014 from a female patient who alleged that Trevor James Scott, a massage therapist, had masturbated and put his penis on her left wrist during a session. The patient did not make any complaint to Scott and did not say anything about the incident to him or anyone else at the clinic.
The patient did go to police immediately after her massage therapy session and told them she heard him unzip his pants and “play with his penis” while massaging her with his other hand. She said he unzipped his pants a second time and put what she believed to be his penis on her wrist.
She told police she did not want charges — she simply wished to have the complaint on file in the event that future complaints were received. The police took no action but on Oct. 10 sent a report to the College of Massage Therapists Inquiry Committee.
Scott denied any sexual misconduct, said he had no criminal record for sexual assault and no previous complaint history. He sought reconsideration.
The committee conducted an ex parte hearing and found the alleged conduct to be “extremely serious” and identified a “lack of measures” to protect the public.
After identifying a risk to public safety, the College of Massage Therapists of British Columbia placed interim restrictions on Scott’s practice pending a full disciplinary hearing.
The B.C. Supreme Court later set aside those interim restrictions, saying that it was unreasonable for the College to have found a risk to the public based only on the complainant’s report of what took place. The College then appealed that decision to the BCCA, and the case was heard in January.
The Court was called upon to determine how governing bodies of health-care professionals should respond to such allegations in order to protect the public.
West Coast Women’s Legal Education & Action Fund intervened in the case to argue that women’s allegations of sexual misconduct must be taken seriously and require urgent action to protect the safety of patients while a complaint is under review.
“We are pleased that the Court found that women’s allegations of sexual misconduct must be taken seriously,” says Raji Mangat, director of litigation for West Coast LEAF. “Women are disproportionately the victims of sexual assault. Therefore, allowing the bodies we trust to govern health-care professions to place interim restrictions on health-care practitioners while an investigation is conducted is the best way to protect women and ensure equal and safe access to health care.
“In our view, the interests of women and other vulnerable people being able to access health care safely and not feel potentially some risk of something happening is greater than this interim period of time allowing this individual to practise without conditions,” says Mangat.
Mangat says there were “some troubling elements” of the B.C. Supreme Court judgment around what corroboration would be required for determining instances when the interim conditions could be put on a massage therapist’s practice, as well as “antiquated ideas” around what is an ideal response to sexual misconduct.
The implications of the case go beyond the College of Massage Therapists, as the case clarifies the standard of evidence required for many health professions’ governing bodies to act quickly in the public interest.
The Court of Appeal found that in order to impose interim conditions on a massage therapist who is subject to a complaint, the Inquiries Committee has to conclude that there was a prima facie case to support the allegation and an interim order is required to protect the public.
The Court of Appeal also confirmed that the Inquiries Committee is not to conduct a mini-trial to weigh the evidence, but the registrant may give evidence that the allegation is “manifestly unfounded or manifestly exaggerated” and to the impact of the interim order on the registrant.
The case creates a “very high threshold” for regulated health professionals seeking to challenge a proposed interim suspension or interim conditions, in the face of a complaint alleging serious misconduct, such as sexual abuse, says Lad Kucis, partner and co-chairman of the health law group with Gardiner Roberts LLP in Toronto.
“In such circumstances, the regulated health professional has to demonstrate that the complaint is ‘manifestly unfounded or manifestly exaggerated’, which in most instances, would be extremely difficult to accomplish,” he says.
“Although the Court of Appeal states that an interim order is to be used only in extraordinary cases, significant discretion is given to the Inquiries Committee in making the determination, which if exercised, is almost impossible for a health professional to challenge,” he says.
Mangat says there is a balance that has to occur in cases like this.
“The court also said if the inquiry committee gets evidence from the individual that the complaint is manifestly unfounded or exaggerated, they can take that account as well,” she says. “That puts a check on things if you think it’s going to open some sort of floodgate. We know sexual misconduct is vastly underreported, so we don’t think it’s a founded concern, but there is recognition in this decision that there are significant consequences for the health-care professional as well.”
Scott's formal disciplinary hearing is in process and is expected to finish this month. The Court remitted the issue to go back to the inquiry committee to decide how they would like to proceed in light of the passage of time since the complaint was first flagged and the conditions imposed.
Man dies after being hit by vehicle in east-end Toronto, Canadian Press
The new dean of the McGill University Faculty of Law says the school will be introducing a new property course as part of the school’s effort for program renewal.
|Robert Leckey takes over the post of McGill University’s law school dean in July.|
Leckey has been part of McGill’s faculty of law in Montreal since 2006, and is known for his research and teaching in family and constitutional law. He’s also the director of the Paul-André Crépeau Centre for Private and Comparative Law, and chaired the McGill equity subcommittee on queer people.
“The transsystemic teaching where multiple legal traditions are taught together, we’re actually pushing it further still,” says Leckey.
Take a new property course Leckey says will be “totally unique in the country.” Until now, he says there’s been “a common law property course and a civil law property course for Quebec, and that’s going to be integrated in a new property course that will have common law, civil law, but also make Indigenous legal traditions more prominent, as well.”
“It’s an important moment as we and other law faculties respond to the recommendations of the Truth and Reconciliation Commission, I think it’s really exciting we have this property course in development,” he says.
Leckey says he plans to meet with as many stakeholders as possible this summer to chart the way forward for the law school.
“The listening is a really crucial part of the start of the mandate for me,” says Leckey.
As of October 2015, the school had more than 680 students in its undergraduate program, more than 90 in the masters program, and more than 60 in the doctorate program. There are 44 full-time faculty, who are tenured or streamed for tenure.
Leckey says competition for research dollars and graduate students is fierce, and the school will be making effort to communicate its strengths.
“I think the scholars here do amazing research, we have internationally recognized scholars, and I think we can clarify and communicate better what the research strengths of the faculty are,” says the incoming dean.
Leckey says the school is known for areas including international and domestic human rights, private law and comparative private law, dispute resolution, civil procedure arbitration, and trade and international governance.
“It’s a very competitive environment, where we’re competing with other people with clear brands, and I think we can clarify ours further,” he says.
Schools, especially in Quebec, face challenges regarding funding, he says.
“The pressure is increasing because the university’s own resources are less and less, particularly in Quebec these days, we need to be bringing in outside research money,” he says.
“And so, there’s a provincial research funding council, there’s a national one in Ottawa, there are opportunities to partner at times with other kinds of organizations, but, in order for us to have the money to hire students, to travel to do our work, people need to be bringing in grants, and so, it is increasingly competitive because typically those governmental envelopes have not been growing over the past years, so part of the task is to be bringing in resources.”
Tuition is frozen and is “very low,” he notes.
“McGill is subject to the Quebec government’s funding formula, and yet, we’re trying to compete on the international stage,” he says.
Leckey says he plans to continue his research, and will look how law reform has affected unmarried couples.
“People tell me the deanship will reduce my research time, but I’m certainly going to continue active as a researcher and do as much as I can,” he says.
The Supreme Court of Canada has a busy week ahead of it, with seven hearings relating to real estate, medical malpractice, and evidence at murder trials. In addition, the court will hear two court martial appeals, one of which challenges the National Defence Act for violating the defendant’s right to prosecutorial independence.
April 25 – Federal – R. v. Cawthorne
Criminal law: Ordinary Seaman Cawthorne was convicted by a court martial of possession of child pornography. The porn was found on Cawthorne’s lost cellphone by someone trying to identify the owner of the phone. The respondent admitted to possessing the images, but claimed to not realize they were of underage children. The respondent successfully argued on appeal that the evidence was inadmissible. One judge was in dissent. The SCC will review the admissibility of such evidence at court martial.
Read the Court Martial Appeal Court decision
April 25 – Federal – R. v. Gagnon
Charter of Rights: Warrant Officer André Gagnon and Corp. A.J.R. Thibault are members of the armed forces who were charged with the sexual assault of a subordinate officer. They were acquitted at trial. When the complainant, former corporal Stephanie Raymond sought an appeal, the respondents filed a motion to dismiss on grounds that the National Defence Act infringes on the defendant’s right to prosecutorial independence. The Court Martial Appeal Court found the relevant provisions invalid but suspended the ruling until June 21, 2016. The SCC will review whether the Charter infringement is reasonable.
Read the Court Martial Appeal Court decision
Canadian soldier acquitted of sexually assaulting subordinate, The Globe and Mail
April 26 – British Columbia – Musqueam Indian Band v. Board of Review
Aboriginal law: The Shaughnessy Golf and Country Club operates its golf course on land belonging to the Musqueam Indian Band, for which it pays property taxes. The Musqueam Indian Band is appealing a decision by its board of review that set taxes based on the value of the land as a golf course. The band argues that the land is much more valuable given its potential for residential development. On appeal, the court reasoned that Shaughnessy’s use of the land is restricted and therefore the value of the land must also be limited.
Read the British Columbia Court of Appeal decision
Related news story:
Musqueam Indian Band golf course case heads to Supreme Court of Canada, CBC
April 27 – Ontario – Royal Bank v. Trang
Privacy law: Phat and Phuong Trang own a property that makes up part of a judgment awarded to Royal Bank of Canada. The sheriff, however, refuses to sell the property without a mortgage discharge statement. However, the mortgage provider, Bank of Nova Scotia, says it cannot produce the statement without consent due to provisions within the Personal Information and Electronic Documents Act. RBC is challenging the use of PIPEDA to block the sale of a property that is the subject of a court award.
Read the Ontario appeal court decision
April 28 – Quebec – Benhaim v. St-Germain
Medical malpractice: The applicants Albert Benhaim and Michael O’Donovan are physicians who lost a medical malpractice suit against Cathie St-Germain, a woman who argued they neglected to spot a nodule appearing in the X-rays of her spouse, who then died of cancer. The Superior Court held that the physicians were at fault in this case but that causation had not been proved. The appeal court set aside the decision.
Read the Quebec appeal court decision
Family of non-smoker awarded $1.7 million, Law in Quebec
April 29 – Saskatchewan – Shaoulle v. R.
Criminal law: John Thomas Shaoulle was convicted of first-degree murder by a judge sitting without a jury. The evidence against him was circumstantial but the judge found it sufficient to convict. The judgment was upheld on appeal, with one judge in dissent. The SCC will review the weight of circumstantial evidence in such matters.
Read the Saskatchewan Court of Appeal decision
Related news stories:
Prince Albert murder case may go to Supreme Court, Prince Albert Now
Wollaston Lake man found guilty of first-degree murder, Prince Albert Herald
April 29 – Quebec – Laliberté v. R.
Criminal law: Pierre-Olivier Laliberté was convicted of first-degree murder and attempted murder. His DNA was found under the fingernails of the surviving victim. At trial, the judge denied attempts to bring into evidence statements by the victim that she did not know the assailant. The judge also instructed the jury that they could disregard the appellant’s alibi if they felt it was fabricated. The conviction was upheld on appeal, with one dissent.
Read the Quebec appeal court decision
Pierre-Olivier Laliberté perd sa cause en Cour d’appel, Radio-Canada
La Cour suprême entendra Pierre-Olivier Laliberté, Radio-Canada
The life of part-time employees may be getting even more precarious based on “on-call” practices Canadian retailer DavidsTea is using in certain U.S. states.
|Employment lawyers in Canada say nothing prohibits on-call practices here; it is a a sign of these precarious employment times. (Photo: Shutterstock)|
Schneiderman and officials from eight other U.S. jurisdictions notified the retailers — including Coach, Forever 21, and Payless ShoeSource — that he wants more information about their use of a scheduling practice that asks employees to call in before a shift to find out if they are needed to work.
If a worker isn’t required to work, they aren’t paid for the day, even though the person was required to be available for work that day and forgo other opportunities.
Many provinces in Canada have legislation that mandates a minimum period of pay at minimum wage when an employee shows up and gets sent home early (in Ontario, for example, it is three hours). In New York, the requirement is to pay for a minimum of four hours.
The approach taken by some of the U.S. retailers is more like having a roster of casual workers where the worker is not actually required to report in to the premises before his or her shift is cancelled.
Schneiderman said on-call shifts are not fair to workers because unpredictable shifts make it hard for employees to arrange childcare and otherwise conduct their lives. Employers who received similar communication from the state last year ended the use of on-call shifts.
“On-call shifts are unfair to workers who must keep the day free, arrange for childcare, and give up the chance to get another job or attend a class — often all for nothing,” said Schneiderman in a press release. ”On-call shifts are not a business necessity, as we see from the many retailers that no longer use this unjust method of scheduling work hours.”
Employment lawyers in Canada say there is nothing prohibiting that kind of practice here — it is merely a sign of the times in the realm of precarious employment.
“The potential conflict would arise if an employee was terminated for not being available when called,” says Nasha Nijhawan, of Nijhawan McMillan Barristers in Halifax.
“Unfortunately, in the context of a minimum wage/part-time employment relationship, all the employer would have to do in that case is pay out any applicable statutory minimum notice period to escape liability,” says Nijhawan.
It would still probably be “worth it” to the employer from a cost of doing business perspective.
“This is a reflection of the power dynamic of minimum-wage employers in a depressed job market — they don’t need to offer stability where their employees don’t have options for other jobs,” she says.
“On-demand” scheduling may be a sign of a difficult labour market, but it is not unlawful in Ontario, says Danny Kastner, of Kastner Law in Toronto.
Kastner says it is a feature of the new precarious employment landscape.
In Ontario, the ongoing provincial Changing Workplaces Review is considering how the Labour Relations Act, 1995 and Employment Standards Act, 2000 could be amended to best protect workers while supporting businesses in a changing economy. The goal is to tailor employment law to more specifically address the emerging issues that arise when non-traditional models aren’t used.
“If it were going on here, it’s the kind of issue the province would be looking at because it highlights how traditional labour and employment laws are out of date when it comes to new models of employment,” says Kastner.
Kastner points out that those who work for temp agencies get what is effectively “on-call work,” but he adds it can be “hugely problematic” in terms of the havoc it can create in the lives of employees.
“Some employees might prefer this approach and prefer it to the 9 to 5, but there is something inherently troubling about the kind of just-in-time supply chain logic that Wal-Mart uses being applied to workers,” says Kastner.
Last year, the New York state attorney general’s office sent letters to 14 major retailers seeking information on on-call shifts. Several recipients indicated they were not using such shifts, while others agreed to stop the practice.
|Senator Mike Duffy leaves the courthouse after being cleared of bribery and fraud charges. (Photo: Chris Wattie/Reuters)|
Duffy, a former television journalist, had faced 31 criminal charges related to roughly $90,000 in expenses he charged after former Conservative Prime Minister Stephen Harper appointed him to the Senate, the upper chamber of Parliament, in late 2008.
The trial started last August, shortly after Harper had launched an election campaign.
The court heard that Harper's chief of staff, Nigel Wright, had pressed Duffy to repay the expenses, even though Wright felt they were most likely legal. Evidence also showed Harper's team had given orders to the Senate, which is supposed to be independent.
Duffy chose to be tried without a jury. In a 308-page ruling, Ontario Court Judge Charles Vaillancourt said he found the senator to be a credible witness and strongly criticized Harper's aides for their behavior.
As the case progressed amid enormous media coverage last year, polls showed the Conservatives starting to lose support. Justin Trudeau's Liberals won a majority in the federal election on Oct. 19.
- Canadian Judicial Council recommends Quebec judge not be removed
One day after the Canadian Judicial Council issued its recommendation to not remove Justice Michel Girouard from the bench — despite a suspicious video of an alleged drug deal — a legal academic is pointing to a glaring lack of independence for judicial misconduct and a possible double standard.
|Allan Hutchinson suggests that the process for dealing with judicial misconduct is broken.|
Yesterday, in the case of Quebec Superior Court Justice Michel Girouard — who admitted to meeting regularly with a man later convicted of trafficking — the CJC rejected the majority opinion of its own inquiry committee to remove the judge from the bench.
“What is he doing dealing with these people anyway? Whether he bought the cocaine or not?” says Allan Hutchinson, the Osgoode Hall law professor and member of the Canadian Association for Legal Ethics.
“She did nothing illegal, but she ended up getting suspended and then retiring. So there's a bit of a double standard going on there. She ends up off the bench because this whole thing about the woman's sexual activity — well they don't deal well with that well, to put it mildly.”
The Girouard scandal, meanwhile, first surfaced in 2012, when as part of a drug-trafficking investigation, an informant told police he had sold Girouard nearly $100,000 of cocaine in the years leading up to his judicial nomination in September 2010, and that Girouard would sometimes exchange legal services for cocaine.
The investigation produced a closed-circuit video of one alleged transaction, in which Girouard is seen in the backroom of a video store with former client Yvon Lamontagne. The video has no sound, but Girouard is seen handing money to Lamontagne for what appears to be a small packet.
Both Girouard and Lamontagne (who was later convicted and sentenced to 10 years) deny that the transaction involved drugs. Lamontagne testified that he handed him a receipt for a debt repaid; Girouard testified that it was a document related to a tax settlement, and that he regularly met with Lamontagne to get new video releases.
An inquiry committee, comprising two chief justices and a Quebec barrister, was struck to investigate the allegations. The committee reviewed the police evidence and heard testimony from 13 witnesses, including Girouard’s cardiologist and law partner, both of whom stated that they observed no evidence that Girouard had ever exhibited evidence of drug abuse.
In November 2015, the majority of the committee found that, despite a lack of evidence on the balance of probabilities, Girouard should be removed from the bench because his implausible testimony suggested a deception.
The third panelist, Manitoba Chief Justice Richard Chartier, offered a dissenting opinion. He argued that any perceived ambiguities in Girourd’s testimony could be attributed to the passage of time.
Yesterday, the CJC sided with Chartier’s interpretation. In its final report, the council explained its decision to disregard arguments around implausibility, given that they were separate from allegations of drug trafficking and that Girouard had not been given the opportunity to respond to them:
“The Council takes this approach because the judge was not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.
“Not only had a great deal of time (about 25 years) passed since the events, thereby weakening the quality of the evidence available, but there was also no evidence confirming the drug trafficker’s allegations. There was, however, evidence to the contrary in the Judge’s denial and the evidence of family, friends and professional colleague.”
Hutchinson, for his part, has no opinion on the evidence against Girouard or the implausibility of his testimony, but he suggests that the process for dealing with judicial misconduct is broken.
“The whole thing doesn’t look good,” he says. “Judges judging judges, right? I understand the need for independence and all that kind of stuff, but it’s not good enough. People will be suspicious that the judges are closing ranks, so they need a better process.”
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