Legal Feeds Blog
Toronto woman charged with defrauding charity of $800,000, Canadian Press
Closing arguments continue in Guy Turcotte murder trial, Canadian Press
Former student to launch human-rights complaint against UBC, Canadian Press
Both sides in a class action case involving VIA Rail have been sent back to the drawing board with a litigation strategy template from the Ontario Superior Court.
|Jay Strosberg admits there isn’t much case law guidance on the individual issues phase of class actions.|
Calling the matter “a test centre for undeveloped but very important aspects of class action procedure” under the Class Proceedings Act, Justice Paul Perell ruled on an individual issues motion Nov. 16 in Lundy v. VIA Rail.
He gave both parties 30 days to consider and adapt his litigation strategy and if an agreement cannot be made in that time, he ordered a case conference where he will settle the plans.
“One might think that the matter of designing the individual issues phase of a class action is no big deal and that designing the individual issues phase pales in significance to the matters of certification, the common issues trial, and the settlement approval stages of a class action,” Perell wrote.
“However, one would be wrong in undervaluing the importance of the litigation plan for the final stage of a class action. The design of the individual issues phase has a substantial impact on achieving the goals of the class action regime of access to justice, behaviour modification, and judicial economy.”
In the issue before him, the parties could not agree about the litigation plan for the individual issues phase of the action and both presented strategies to the court. The 45 class members were all passengers on a VIA Rail train in early 2012 when it derailed near Burlington, Ont.
In mid-2014, VIA served offers to settle to each individual class member, ranging from $8,000 to $40,000 and the promise VIA would pay members’ legal fees and disbursements in an amount equal to 15 per cent of the settlement amount paid to the class member.
At that time, Perell ordered the parties to prepare individual issues litigation plans, an assessment of costs to date, and judgment on common issues of the certification order. He ruled that once the litigation plans were settled, VIA could then deliver the individual offers to settle. But the sides could not agree on those plans and Perell ordered they try one more time.
Jay Strosberg, partner at Sutts Strosberg LLP, says the individual issues stage of a class action is not common as cases generally settle beforehand. He says when that procedure isn’t agreed upon, there isn’t much guidance on how individual issues should be resolved.
“In one sense it is reassuring that there isn’t a lot of case law on this point, because it means that counsel have generally been able to come up with a plan they both agree with. In another sense, it would be helpful if there were more input from the judiciary about what types of procedures they feel are manageable for handling individual damages claims,” he says.
Strosberg says procedure should allow for class members to submit their claims without huge hurdles, while allowing the defence to also lead evidence and make its case.
“It is a tricky balancing act and one that requires a good deal of practical foresight,” says Strosberg.
“Perell took this opportunity to propose a plan of his own in which he underscored the importance of access to justice and judicial economy, which really should be the focus when coming up with a plan.”
Margaret Waddell, of Paliare Roland Rosenberg Rothstein LLP, says the rules under the CPA are purposefully broad to ensure an efficient process."
“If the parties can’t reach an agreement, then the court has tremendous discretion and latitude in creating a bespoke process for each case. Once a case reaches this stage of the proceeding, the efficiencies of the CPA really come home to roost,” she says.
“The parties can agree on their own efficient process, or if they can’t agree, then the court has the power to craft a procedure that works for the litigants in a way that best meets the objectives of access to justice, efficiency and proportionality for all the remaining parties.”
Update Nov. 24: Quote from Margaret Waddell corrected.
Liquor stores best place to sell marijuana: Manitoba premier, Canadian Press
One man dead following explosion at B.C. work site, Canadian Press
Military personnel are subject to court martial for all federal offences, even when those offences have nothing to do with the accused’s military service.
|Criminal defence lawyer Ian Kasper says the SCC decision is really about whether military personnel are still subject to military law even when they’re off duty.|
In the decision, indexed under R. v. Moriarty, military officers convicted of various offences — such as fraud and drug trafficking — argued before the Court Martial Appeal Court that their Charter rights were being violated by “overbroad” provisions that denied them a jury trial for non-military offences.
That argument was shot down decisively today. In a decision written by Justice Thomas Cromwell on behalf of a unanimous court, the SCC upheld the CMAC’s finding that NDA provisions mandating court martial are indeed constitutional in that they serve the purpose of maintaining discipline, efficiency and morale in the military service.
“The objective of maintaining ‘discipline, efficiency and morale’ is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances,” the decision states. “The behaviour of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.”
The decision, moreover, strikes down the doctrine of “military nexus,” which requires a connection, albeit a loose one, between the nature of the offence and the accused’s military service. Rather, the SCC finds that simply being a member of the military establishes the requisite connection.
Ian Kasper, a criminal defence lawyer in Toronto and an executive member of the Canadian Bar Association’s military law section, says the decision is really about whether military personnel are still subject to military law even when they’re off duty.
“What happens if someone is off duty and they go get in a bar fight off the base?” says Kasper. “How is that really connected to the military at all?”
“What the Supreme Court is saying is, if you’re in the military and these rules apply to you and you’re going out and breaking laws, then obviously that’s going to have an effect on morale and discipline in the unit . . . and that’s going to have an impact on the military itself.”
There could be an even greater effect on “efficiency,” Kasper points out, given the extent to which military operations would be hampered by having soldiers caught in the slow-moving gears of the civilian justice system. “If you’ve been arrested by a civilian police force, you’re not going to be able to report for duty. If you’re held for bail or held in custody, that affects the ability of the military to perform its task. . . . So the rational connection is pretty easy to see.”
What Kasper finds most interesting about the decision is how it treats the reserve forces, who are only punishable under court martial when on duty. So, while regular armed forces personnel can be thought of as always punishable under court martial, and civilians never, reserve forces move in and out of the jurisdiction.
“I think it’s interesting that the Supreme Court specifically mentioned that the reserve force is different,” says Kasper, who wonders aloud whether that differentiation could be applied elsewhere. “Should the reserve force be treated differently in sentencing, for example, or other areas of the military system as well?”
A committee looking into the conduct of Quebec Superior Court Justice Michel Girouard has recommended he be removed from the bench.
The Canadian Judicial Council released the committee’s report this morning of public hearings held in May. The three-person committee gathered relevant information and heard from a number of witnesses, including Girouard. It included chairman Richard Chartier, chief justice of Manitoba, Chief Justice of the Federal Court Paul Crampton and lawyer Ronald LeBlanc of LeBlanc Maillet in Moncton, N.B.
The allegations of a convicted drug dealer turned police agent and a confidential police informant were at the heart of the hearings into Girouard’s conduct of Quebec.
The judge was alleged to have purchased and consumed illegal narcotics while he was a lawyer in northwestern Quebec, according to documents filed with the council.
Girouard was appointed to the Superior Court of Quebec on Sept. 30, 2010. He had been practising law in the Abitibi region of Quebec since 1985. In November 2012, Francois Rolland, then chief justice of the Quebec Superior Court wrote to the CJC to request a review of Girouard’s conduct in the wake of being notified of allegations against the judge by Quebec’s Director of Criminal and Penal Prosecutions.
“On the basis of the evidence introduced at the Inquiry, the committee could not conclude that the judge had participated in a transaction involving an illicit substance,” the CJC said in a press release. “The evidence presented to the committee was insufficient for it to draw any conclusions about the judge’s use or purchase of cocaine.”
However, the press release noted, the inquiry panel did find it disturbing that, in their final submissions, counsel for Girouard “suggested, in veiled terms, that police forces may have interfered in the case, as is to retaliate against Justice Girouard.”
While the inquiry panel didn’t find enough evidence on the drug allegations, Crampton and LeBlanc found Girourad’s testimony contained several contradictions, inconsistencies, and implausibilities.
They felt these raised questions about the judge’s credibility and integrity, and concluded Girourad was deliberately trying to mislead the committee.
“[W]e are of the opinion that the constellation of contradictions, inconsistencies and implausibilities in Justice Girouard’s testimony raises serious questions about his credibility,” Crampton and LeBlanc wrote in the report. “In our opinion, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth.”
As a result, they recommended Girourard be removed because with “the integrity of a judge, there can be no half-measure: either the judge has integrity, or he does not. Through his lack of candour before the Committee, Justice Girouard raised some serious doubts about his integrity, which inevitably undermines public confidence.”
Chartier disagreed saying the inconsistencies weren’t sufficient to warrant Girourad’s removal.
“In my opinion, in order to conclude that Justice Girouard deliberately attempted to mislead the Committee or that he lied during a disciplinary process, there needs to be more evidence than simply the Committee’s credibility assessment of Justice Girouard.”
The CJC says it will now consider the inquiry committee’s report.
Girourard and independent counsel Marie Cossette will also be able to provide further written submissions.
The press release also notes because this matter was commenced before the coming into force of the July 2015 Bylaws, the previous bylaws apply.
After considering all the issues, the CJC will decide on whether to recommend to the minister of Justice whether Girouard should or shouldn’t be removed from the bench.
Since it was created in 1971, the CJC has only three times recommended a judge be removed from office. In reality, however, as the CJC’s web site points out, “Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken.”
The full CJC inquiry panel report is available here.
RCMP may have broken law during terror sting: B.C. judge, Canadian Press
Sen. Mike Duffy expected to take stand as trial resumes, Canadian Press
In what he called a “bizarre and lamentable” motion, an Ontario Superior Court judge has taken the “extra-extra ordinary” measure of awarding $70,000 in advance costs to an aboriginal woman seeking to bring a class action on behalf of the former students of Fort William Sanatorium School.
There’s evidence that aboriginal children who needed hospitalization for tuberculosis were sent to a sanatorium and schooled Fort William Sanatorium School, said Justice Paul Perell, but the school is not among the recognized residential schools under the Indian Residential Schools Settlement Agreement, a contract signed in 2006.
Henry is seeking to have the Northwestern Ontario school listed as a residential school under the agreement, but Canada argues the sanatorium, while residential, was a health facility and therefore the responsibility of a board of directors first, and later, the Province of Ontario.
Lawyers and non-profits refuse to take up cases like this one because of there is no established process to obtain remedies for students who went to schools like Fort William Sanatorium School. Getting those institutions recognized as residential schools is onerous and costly.
“It is a lamentable motion, because, for a variety of reasons, ‘nobody’ was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the [request for direction]. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined,” Perell wrote.
“In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.”
Henry — who is 82-years-old, disabled, unemployed, and impoverished — could not by herself bring the request for direction under IRSSA. Edward Sadowski, a researcher who has helped up to 1,000 aboriginal claimants with respect to claims under the IRSSA, filed the request on her behalf but failed to obtain legal assistance to advance it.
The motion was “bizarre,” according to the judge, because the very question of who was bringing it was in dispute. Canada argued Sadowski, who is not aboriginal and did not attend a residential school, was the person bringing the application and seeking advance costs.
But Perell disagreed. “Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me,” he wrote.
“In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice,” Perell added.
He ordered the federal government to pay Henry $70,000 in advance costs as well as the cost of the motion.
Christa Big-Canoe, legal director at Aboriginal Legal Services of Toronto, says Perell’s ruling is “a significant win.”
“It speaks to the need to recognize that things don’t always fit into a box laid out in a settlement agreement,” says Big-Canoe. “It speaks to recognizing there are more survivors of this type of colonial legacy and it will provide an opportunity for those survivors to at least have their day in court.”
Big-Canoe says aboriginal students were, at times, sent to sanatoriums for being unco-operative, deemed “insane,” or otherwise sick. In some cases, the residential schools they attended before going to a sanatorium would take their names off the attendance roll, leaving them with no record of having attended a recognized residential school.
In some cases, the students only ever attended sanatorium schools, and “atrocities” have taken place in those schools as well.
“It becomes a Catch 22; they’re not being recognized,” she says.
Big-Canoe says while unfortunate, it’s understandable that both private practitioners and non-profits like her organization are reluctant to take up cases like Henry’s. When a person is seeking to have a school recognized officially as an Indian residential school, there are huge disbursement costs as well as dozens of hours of work with no guarantee of success, she says.
From a non-profit perspective, “we would be putting out all that money and time and the reality is if the process isn’t going to accept the claimant’s application, it’s money that could have been used for a person who would fit within the claim parameters,” adds Big-Canoe.
According to Perell, the case is an example of a “pandemic” issue in class proceedings as well.
“In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases,” he wrote. “The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.
“I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems,” Perell continued.
“The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.”
Price-fixing charges against Nestle Canada are stayed, Canadian Press
The Law Society of British Columbia has wrapped up its 2016-2017 bencher elections and the results are in. Six new benchers will join the regulator with another 16 re-elected.
|David Crossin becomes the new president of the Law Society of British Columbia.|
Crossin was first elected as bencher in 2009. He is a partner at Sugden McFee & Roos LLP and practises litigation in the area of commercial, criminal, and administrative law and has appeared at all levels of court in British Columbia and the Supreme Court of Canada. He has been recognized as lawyer of the year in the area of criminal defence in 2015.
Van Ommen started his bencher career in 2008 when he won the Vancouver county by-election with 773 votes. Commercial and corporate litigation is Van Ommen’s area of practice at McCarthy Tétrault LLP in Vancouver. Prior to being elected Van Ommen has acted as counsel in disciplinary and credential hearings for the LSBC. He is also a sports enthusiast having managed a peewee baseball team and acted as director of the Delta Gymnastics Society.
Benchers are elected for two years on renewable terms. There were a total of 12,740 eligible voters for nine districts in the province.
A low turnout of just 34 per cent of voters cast ballots in district one — Vancouver — where six candidates were re-elected and four elected for the first time. Two candidates were re-elected in the district of Victoria, which had a 47-per-cent voter turnout. The highest voter turnout was in Kamloops with 57 per cent of eligible voters casting ballots.
First-time electee in the district of Kamloops, notable candidate Michelle D. Stanford hopes to continue advocating for equity and diversity using her new platform. Stanford’s inspiration to run for bencher comes from law society’s president Ken Walker, who is known for his avid advocacy for small firms and mentorship and education for students and young lawyers.
In the districts of Nanaimo, Kootenay, and Okanagan three benchers were elected by acclamation.
Walker acknowledges the years of dedicated service of benchers who will not be returning in 2016. He thanks Joseph Avray, David Mossop, Cameron Ward, Edmund Caissie and Jeevyn Dhailiwal, also naming the outgoing president and Mossop, life benchers.
According to society’s regulations candidates who were not elected have time to apply in writing for a review of the election prior to Nov. 27.
Here is the complete list of elected LSBC benchers:
District No. 1 Vancouver (10)
Sharon D. Matthews
Jamie F. Maclaren
Craig A.B. Ferris
District No. 2 Victoria (two)
Pinder K. Cheema
District No. 3 Nanaimo
Nancy G. Merrill
District No. 4 Westminster (three)
Christopher A. McPherson
District No. 5 Kootenay (one)
Lynal E. Doerksen
District No. 6 Okanagan (one)
District No. 7 Cariboo (two)
District No. 8 Prince Rupert (one)
District No. 9 Kamloops (one)
Michelle D. Stanford
The Fraser Institute says a recent Supreme Court of Canada decision on aboriginal title will expose companies and other private entities to potential litigation only previously brought against federal and provincial governments.
|Ravina Bains says the decision creates uncertainty and additional questions not only for private companies but also First Nations.|
In her study, Ravina Bains, associate director of the Fraser Institute Centre for Aboriginal Policy Studies, looked at the October 2015 Supreme Court decision upholding a British Columbia Court of Appeal ruling that would allow First Nations to file for damages against private entities without proving aboriginal title first.
Bains says the decision creates uncertainty and additional questions not only for private companies but also First Nations themselves. The decision changes the relationship between companies and the federal and provincial governments, to potential litigation between private parties and the courts.
The SCC decision allows two B.C. First Nations to file for damages against mining giant Rio Tinto. The case involves the company’s Kenney Dam, which has been operating for 60 years on the Nechako River in northeastern B.C. It services the Kitimat aluminum smelter, a project supported by the Haisla First Nation.
Rio Tinto recently invested more than $4 billion to upgrade the smelter. The company is operating under a provincial government licence on land it bought from the government in the 1950s.
“This is something that has historically been, in terms of litigation and negotiation, between First Nations and the Crown and now this is opening up a whole other area of litigation against private parties,” says Bain.
“It adds just as many questions for First Nations groups who are rightfully trying to gain aboriginal title on land.”
In order for the First Nations communities to win damages they will have to prove aboriginal title.
“If they are granted aboriginal title will the province of B.C. and federal government recognize that?” says Bains.
“If these communities do choose to go down that path is there a chance they will be in litigation for 20 years like Tsilhqot’in was, then end up gaining damages from Rio Tinto but not having aboriginal title recognized by the government?”
Because the SCC upheld the Court of Appeal decision and said these communities can bring forward a damages claim, Bains says it will be interesting to see if they go ahead and pursue the claim against Rio Tinto or, if the parties will negotiate an out-of-court settlement.
However, one aboriginal lawyer says the decision is not really a game changer, but rather more “a very Canadian; very fair process.” Thomas Isaac doesn’t see it as a “material decision.”
Isaac says he does not believe private parties should be on the hook for damages, at least in respect of a constitutional infringement of rights. There may be nuisance claims, but he says that’s a different issue.
“It’s an important decision but it does not stand that automatically the compensation will flow,” says Isaac, a partner with Osler Hoskin & Harcourt LLP in Calgary.
“It stands for the fact the court had determined — rightly or wrongly — that these claims should be treated like other claims and if proven there could be some damages owing.
“The court is saying you have the right to argue this at some future point,” says Isaac. “Given where the legal developments have gone in this country it’s not surprising.”
In the Fraser Institute’s annual mining survey, Bains says the No. 1 impediment for mining investment in B.C. is uncertainty over land claims.
“This only adds to that uncertainty and it’s not only about potential future investment but projects and investment currently taking place,” says Bains.
Watch for more on this story in the January issue of Canadian Lawyer InHouse magazine.
Subscribe to Legal Feeds
- Neil Etienne
- Patricia Cancilla
- David Dias
- Yamri Taddese
- Jennifer Brown
- Glenn Kauth
- Gail J. Cohen
- Karen Lorimer