Legal Feeds Blog
St. Catharines man charged with first-degree murder of woman, Canadian Press
Retired B.C. teacher on trial for child pornography after it was uncovered by renovators, Canadian Press
Preliminary hearing begins for Montreal superhospital bribery case, Canadian Press
New York City tour bus companies agree to pay anti-trust settlement, Reuters
Police officer arraigned on smuggling charges for taking man into U.S. from Mexico, Reuters
Trial of Lebanese journalist could endanger press freedom, Reuters
Ethiopian Airlines pilot found guilty of hijacking his own plane and flying it to Geneva, Reuters
|Barry Glaspell says the big issue with national class actions is often how to implement them.|
Glaspell was speaking of Parsons v. Ontario, a decision released Friday that included two partial dissents from Justice Harry LaForme’s decision in the matter. The judges were ruling on former Ontario chief justice Warren Winkler’s decision in 2013 in which, sitting as a Superior Court judge, he held that the Ontario court’s “inherent jurisdiction to fully control its own process” permitted it to convene outside the province.
In this case, the proceedings were to take place in Edmonton to hear parallel motions arising under the pan-Canadian settlement agreement in the Hepatitis C case. Superior court judges from British Columbia, Ontario, and Quebec are supervising the implementation and enforcement of the settlement.
Ontario’s attorney general raised a number of arguments in its appeal. It argued the Constitution, the common law, and legislation prevent judges from conducting hearings outside their home province. It also suggested the only way to get around the issue was by using a video link.
On the constitutional issue, the province argued the federal nature of Canada’s court system envisions parallel and distinct court systems operating within their respective jurisdictions; the question of whether judges can hold hearings outside Ontario is a matter for the legislature and not the courts; and conducting a hearing elsewhere infringes the sovereignty of the other province.
In deciding the issue, LaForme found each judge would conduct a separate hearing to decide the matter in question. He noted the idea of a single location was to enhance co-operation between the three judges who would nevertheless issue orders from their home provinces.
“In my view, such a process respects the distinct nature of the courts of each province while stimulating the cooperation required to effectively administer the Settlement Agreement,” wrote LaForme.
LaForme also found Ontario had effectively conceded that out-of-province hearings aren’t presumptively unconstitutional as it recognized that the legislature could authorize them by statute.
“If Ontario has the legislative authority to permit out-of-province hearings, there can be nothing presumptively unconstitutional about them,” he wrote.
LaForme also rejected the province’s argument about infringing Alberta’s sovereignty.
“In my view, the motion that was to have been heard in Alberta would not have infringed Alberta’s sovereignty. It is common ground that the supervisory judges had personal and subject matter jurisdiction in this case. The parallel motions were paper motions; no witnesses were to be called. The exercise of coercive powers was not contemplated. And the motions were to be heard in the context of a pan-Canadian Settlement Agreement approved by each and every jurisdiction in Canada, including Alberta. In these circumstances, I can see no infringement of Alberta’s sovereignty.”
Another key issue in the case was the open-court principle as the Ontario government argued it precludes an Ontario judge from conducting a hearing outside the province. On this issue, LaForme found the principle of open courts isn’t absolute as it doesn’t guarantee a right to be physically present in the courtroom. And, he noted, the Edmonton hearings would presumably have taken place in open court and the media would still have been able to report on them.
“The driving factor behind the proximity between open justice and freedom of expression would be preserved,” wrote LaForme.
Interestingly, the decision in this case was moot in light of legal developments in British Columbia. While the supervising judges in British Columbia and Quebec agreed with the Ontario decision to convene in another province, the B.C. Court of Appeal allowed that province’s appeal on the issue. In the end, the courts heard separate motions on the claims extension matter before them. They reached three conflicting decisions, according to LaForme. But the Ontario appeal court went ahead and decided the jurisdictional question as the parties argued the issue was likely to arise again.
Glaspell notes the B.C. appeal ruling is subject to a leave application at the Supreme Court of Canada.
But adding to the confusion is the fact there were two partial dissents from LaForme’s findings. Justice Russell Juriansz found Winkler had erred in finding a Superior Court judge in this case could sit outside Ontario without the necessity of a video link to a courtroom in Ontario.
“I would conclude that the Ontario supervising judge while physically located outside the province has the jurisdiction and discretion to conduct the motion remotely and concurrently with his or her judicial supervisory counterparts,” wrote Juriansz, who emphasized the necessity of ensuring the open-courts principle but found technological alternatives could accommodate the requirement that the Ontario public be able to attend the hearing in an Ontario courtroom.
Further partial dissent came from Justice Peter Lauwers, who agreed with LaForme in all respects except on the question of requiring a video link.
“In my view, s. 135 of the Courts of Justice Act requires a ‘video pipe’ between the room or rooms outside Ontario in which the hearing is held and a reasonably accessible Ontario courtroom,” wrote Lauwers.
“Only then can the hearing be said to be open to members of the Ontario public who wish to attend. Therefore, in my view, s. 135 is an express statutory limitation on the court’s inherent jurisdiction to hold a hearing outside Ontario.”
For Glaspell, having a video link is key. “I actually think a video link is needed,” he says, citing the concern for open courts.
Glaspell also notes that underlying the issue in such cases is the question of whether judges from different provinces can confer with each in the absence of counsel.
“The core issue is whether judges speak to each other before they make their ruling without counsel being present,” he says, noting it’s an issue counsel would seek instructions on from their clients.
Glaspell also says while the legal system has dealt with many national class actions, the difficulty, as this case shows, is often how to implement them.
“This case has been settled. This is a case where is should not have been a big deal, frankly, and what justice Winkler said made sense,” he says.
After reviewing all of the information and considering relating circumstances in hearings last week, a hearing committee of the Canadian Judicial Council stated in an oral ruling that Quebec Justice Michel Déziel should not be removed.
Déziel is facing allegations that back in 1997, when he was a lawyer and an organizer for a party involved in a municipal election, he asked Gilles Cloutier to convert $30,000 into political contributions of $750 each.
The donations were allegedly for the Action civique de Blainville party. Cloutier, who worked for an engineering firm, made the allegations in 2013 during testimony at the Charbonneau Inquiry into municipal corruption in the province.
The judicial council initially announced in May 2013 that it was conducting a review of the allegations. A review panel concluded in April 2014 that a full inquiry committee should be constituted.
An amended notice of allegations from the judicial council states Déziel has denied the allegations made by Cloutier. Certain facts though, were acknowledged, the notice states. Déziel admits he acted as an intermediary to transfer between $30,000 and $40,000 from an engineering firm and he does not believe the municipal party disclosed these funds. As well, at the time, personal contributions were limited to $750 and corporations were not permitted to make such donations.
While the committee — chaired by Court of Appeal of New Brunswick Chief Justice Ernest Drapeau with Glenn Joyal, chief justice of the Court of Queen’s Bench in Manitoba and Moncton lawyer Rene Basque — admits some of Déziel’s actions did constitute misconduct under the Judges Act, there were mitigating circumstances and they did not make him unfit to continue his duties as a judge.
The committee overall noted the implausibility of some of the allegations and thus won’t be asking for his removal. However, the final decision lies with the full judicial council. The committee will provide it with a written report and then it will meet to consider the case.
Déziel and independent counsel Suzanne Gagné will both have a chance to submit additional written comments.
The council will then make its recommendations to the minister of justice on whether it feels the judge should be removed.
Déziel was appointed in November 2003 to the Superior Court to preside in Laval
Police in Alberta town angry over ridicule related to bylaw, The National Post
Daycare worker charged with involuntary manslaughter in death of boy, Montreal Gazette
Man charged with attempted murder for entering police station and attacking officer, Toronto Star
Man charged with assault of two policemen during a protest rally in Ferguson, Reuters
Real estate heir Robert Durst arrested on LA murder warrant, Reuters
Son of Iran's former president receives jail sentence for corruption, Reuters
Court decision deepens rift in ex-president Laurent Gbagbo's party, Reuters
Intellectual Property: This case will decide whether incidental copies of music or video made during the production of a media segment each require royalty payments. The société du droit de reproduction des auteurs compositeurs et éditeurs au Canada (SODRAC) has argued that each copy adds value, and as such, the reproductions merit royalty payments as set out in the terms and conditions of the established licence. The CBC has sought judicial review in order to set aside certain terms in the licence.
Read the Federal Court of Appeal’s decision
Related blog post:
Supreme Court set to revisit technological neutrality in CBC v SODRAC, IP Osgoode
March 17 – Quebec – M.M. v. Canada
Extradition: The applicant is a woman from the United States who had lost custody of her three children. Her ex-husband reported the children missing. The children, who later testified that they had run away, were found with their mother in a battered women’s shelter in Quebec. The applicant is fighting extradition orders on defence of necessity. She argues that extradition must be refused where a defence available in Canada is not available in the United States.
Read the Quebec Court of Appeal’s decision
March 18 – Quebec – Société en commandite Place Mullins v. Services immobiliers Diane Bisson
Civil law: Place Mullins authorized the respondent, a real estate broker, to sell a property. The contract stated that the broker would receive a commission upon “agreement concerning the sale” of the property. The broker closed a sale that was conditional on inspection. An inspection revealed oil contamination, which Place Mullins refused to clean up. The buyer therefore refused to purchase the property and Place Mullins refused to pay the commission. The broker commenced an action, which was dismissed by the Superior Court but accepted by the Court of Appeal.
Read the Quebec Court of Appeal’s decision
March 19 – British Columbia – Sanghera v. R.
Charter of Rights: The appellant was convicted of unlawful possession and unauthorized transfer of a restricted firearm. Between the arrest and conviction, 36 months passed, and the appellant argued that the delay — mainly a result of the Crown’s decision to directly indict him — infringed his right to a timely trial. The appeal court dismissed the argument, with one judge dissenting. The SCC will review whether the appeal court erred in determining that the delay was acceptable within the framework of the Charter.
Read the British Columbia Court of Appeal’s decision
Related news story:
All charges stayed against ‘leaders’ of Sanghera crime group, Vancouver Sun
March 20 – British Columbia – R. v. Smith
Charter of Rights: Smith was a baker at an organization that offered baked goods infused with marijuana to patients suffering from chronic pain. He was arrested and charged with possession of marijuana for the purposes of trafficking. At trial, he argued that B.C. regulations preventing medical marijuana users from taking the drug in baked form were unconstitutional, forcing groups like his into existence. He was acquitted at trial, and the acquittal upheld on appeal. One judge, however, dissented, arguing that Smith had no standing to bring a constitutional appeal, and the regulations did not violate the Charter.
Read the British Columbia Court of Appeal’s decision
Related news stories:
B.C. court urged to snuff out medical pot access rules, Vancouver Sun
Medical pot cookie prohibition ruled unconstitutional, CBC
|Click for larger version.|
The findings are a part of an ongoing five-year national study looking into the social and economic cost of Canada’s justice system.
“We’re concerned by the level of impact on society. No doubt that number is of concern,” says Trevor Farrow, associate law dean at Osgoode Hall Law School and the chair of the CFCJ.
But Farrow, the principal investigator of the cost of justice project, says the numbers did not surprise him.
“Quite frankly, while I’m certainly concerned about this, we expected the numbers would be significant,” he says.
The study also found unresolved legal problems are hitting the public purse outside of the justice sector. Annually, unsolved legal issues result in at least $40 million in additional health care costs, says Farrow.
That’s a conservative estimate based on one additional visit to the doctor each year as a result of legal pains.
“It’s based on annual estimates of what the health care system costs per person and what a modest increase per person amount to,” says Farrow.
He notes the details of these findings will be released in a more fulsome report in the future. As a whole, the ongoing study is also contemplating the mental health impact of unresolved legal problems, says Farrow.
But health care isn’t the only sector feeling the sting of unmet legal needs. A fact sheet published yesterday by the CFCJ says we’re also spending $458 million in additional employment insurance costs every year due to unresolved legal issues and dishing out an extra $248 million in social assistance costs.
What this means is “a well-supported, functioning justice system helps to reduce the knock-on costs of unresolved legal problems,” says Farrow. “The fewer of those problems we have, the more money we’ll be saving elsewhere. It’s not an isolated problem, it’s a collective problem that we need to notice.”
While the lack of access to justice is a well-known problem in Canada, the CFCJ study, funded by the Social Sciences and Humanities Research Council of Canada, is hoping to achieve a more sophisticated understanding of what the cost of that really is.
“What we didn’t really know is exactly what that [lack of access to justice] amount to in economic terms and also in related terms in health and wellbeing,” Farrow says. “I think the important thing is, from a user-centered perspective, we start to understand the connections between law and legal problems as part of broader social problems.”
Osgoode Hall Law School students may be back to school with classes restarting as early as Monday, following a bargaining agreement reached between CUPE 3903 Unit 2 and YorkU, while Units 1 and 3 remain on strike. Canadian Lawyer 4Students assistant editor Anastasiya Jogal reports.
Man charged in fatal shooting re-hires lawyer after deciding against self-representation, Canadian Press
RCMP warn public of B.C. man charged of sexually assaulting children, Canadian Press
Lawyer believes deporting man accused of plotting terrorist acts rather than prosecuting him 'absurd', Canadian Press
U.S. housing regulator to take banks to trial to recoup damages over mortgage bonds, Reuters
Soccer player could face 15 years in prison for fatally injuring a referee, Reuters
Palestinian activist sentenced to prison for immigration fraud, Reuters
China to hold 'open trial' for domestic security tsar Zhou Yongkang, Reuters
Former crossing guard faces charges for sexual assault of a teen, Canadian Press
Man accused of first-degree murder says he 'snapped' when girlfriend spit in his face, Canadian Press
Seven arrested over allegations of plot to fix provincial contract, Canadian Press
Judge rules city of Tucson can remove protest 'pods' over treatment of homeless, Reuters
Venture capital firm sued for gender discrimination questions motivations for lawsuit by former partner, Reuters
Women's rights activists detained for planning to demonstrate against sexual harassment on public transport, Reuters
Brazil passes law implementing tougher punishments on murder of women and girls, Reuters
|Andrew Monkhouse says all indications were that the workers should have been classified as employees.|
While the Law Society of Upper Canada has yet to take a firm position on whether or not document review constitutes legal services — a hotly disputed issue that underpins the lawsuit — the plaintiff argues the work she did for ATD could not be considered legal work.
As a result, Sondhi claims she and her colleagues were for years denied statutory labour protections, such as notice of termination. They were also deprived of entitlements such as vacation pay and overtime — with even bathroom breaks docked from their overall compensation.
“These workers were supervised in Deloitte’s offices, they didn’t provide their own tools, or control their own schedules,” said plaintiff’s counsel Andrew Monkhouse in a statement. They were unable to hire others to subcontract their work. This all indicates they should be classified as employees, not independent contractors.
“It is simple logic that a lawyer, hired into a non-legal job, would be eligible for every protection under the law that non-lawyers are afforded.”
Despite the absence of statutory protections, the plaintiff alleges she and her class members agreed to the onerous conditions because they could ill afford to make demands of their employer amid Canada’s cutthroat legal jobs market.
“For many young lawyers, saddled with staggering student debt and desperate not to leave the field of law, document review is a last resort,” the statement of claim reads. “Deloitte is one of only a few document review companies in Ontario, and for many Class Members, represents their sole source of income.”
The conflict between Sondhi and her employer, however, only arose after Deloitte acquired ATD in January 2014. The claim alleges that, upon Deloitte’s acquisition, the new parent company imposed terms on document-review workers that suggested a tacit acknowledgment of potential liability.
Deloitte required document reviewers to contract to an intermediary, Procom Consultants Group (also named in the suit), which then began withholding EI and CPP deductions. The claim alleges this intermediary served to minimize Deloitte’s liability.
Procom then charged Deloitte a fee amounting to $3 per hour — a charge passed on to the document reviewers, who received no benefit from the arrangement. All told, the fee, along with the EI and CPP deductions, reduced the take-home pay of document reviewers from $50 per hour to just over $40 per hour.
Sondhi and a number of her colleagues objected to the new terms, which she claims resulted in her termination without notice via e-mail.
“I was shocked that Deloitte went as far as terminating me for vocalizing opposition to the Procom contract,” said Sondhi in a statement. “The entire situation reinforced to me just how great the power disparity was between Deloitte and I.”
In an interview with Legal Feeds, Monkhouse further stresses, while the introduction of EI and CPP deductions seems to suggest an acknowledgement of an employment relationship, document reviewers continued to operate under the independent contractor model instituted by ATD even after the Deloitte acquisition.
“People still weren’t getting overtime or any of the other benefits,” he says. “They did start to take off EI and CPP, but they didn’t do the rest of it. They wanted to make sure that they weren’t going to have the government come after them, but they still weren’t willing to treat people as employees.”
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