Legal Feeds Blog
- ‘Better late than never,’ says plaintiffs’ lawyer
Seven years after the Ontario class action lawsuit concerning the Sixties Scoop was launched, it is set to make its way before a judge next week.
|Jeffery Wilson, the lawyer representing plaintiffs in the Sixties Scoop, says the fact the class action is being heard next week is ‘better late than never.’ (Photo: courtesy Kathleen Finlay)|
The Ontario Superior Court is set to consider a summary judgment motion about whether the federal government is liable for the loss of cultural identity of aboriginal children who were removed from their homes in the 1960s.
A Superior Court justice will begin hearing arguments Aug. 23 after years of delays because of a certification battle around the suit. The action was first filed in 2009, but it has seen multiple rounds of appeals concerning its certification.
“Better late than never,” says Jeffery Wilson, the lawyer representing the plaintiffs.
In the so-called Sixties Scoop, government workers removed aboriginal children from their families across Canada and placed them with non-aboriginal foster homes.
Wilson says the Ontario suit has been filed on behalf of 16,000 aboriginal people, who say that their displacement as children robbed them of their cultural identity.
The class action suit claims the federal government breached its fiduciary duties it had to the displaced aboriginal children by not taking reasonable steps to protect their cultural identities.
“Cultural identity is critical to the healthy development of vulnerable aboriginal children which, as a fiduciary, Canada must take into account and take reasonable steps to protect,” the claim said.
The lead plaintiff in the suit, Marcia Brown, was four or five years old when a children’s aid society removed her from her family in northern Ontario, the claim said.
She went through foster homes before a non-aboriginal family adopted her when she was nine.
The claim said that she was denied reasonable contact with her family and community, and lost all connection to her heritage until she was 17, when she returned to try and figure out where she was from.
“This action says . . . is that a lawful wrong and if it is, then what is the remedy to make sure it never happens again and to give redress to these people who lost the core of their identity,” Wilson says.
This week, Indigenous Affairs Minister Carolyn Bennett signalled that the government is open to working toward settling lawsuits across the country that concern the Sixties Scoop.
But despite that, next week’s proceeding is set to go ahead and counsel representing the government filed thousands of pages of submissions this week, Wilson says.
“While I’m not doubting, I’m not questioning the motivations of the government or their sincerity or commitment, I’m just confused,” says Wilson.
Wilson says this case is the first in the western world to ask the court whether the loss of cultural identity is an actionable wrong.
He added that he is confident the suit will not have to go to trial as the evidence before the court will be sufficient enough to make a determination through summary judgment.
“The First Nations people would like [others] to know that a wrong took place and that a remedy should be created to ensure that this kind of a wrong can never take place again to First Nations people.”
Stephen Rotstein has been named chairman of the Canadian Bar Association’s Canadian Corporate Counsel Association for 2016-2017.
|A long-time supporter of the CCCA, Stephen Rotstein wants to encourage members to volunteer their time within the organization and offer their expertise as mentors.|
Rotstein, who is vice president, policy and regulatory affairs and general counsel at the Financial Planning Standards Council, takes over from Frédéric Pérodeau of Montreal.
The past chair of the Ontario chapter of the CCCA, Rotstein says he wants to work on promoting the services the CCCA provides to its more than 4,500 members including tools for career management such as the job site the organization launched a few years ago, and the Certified In-House Counsel designation — a business leadership program for in-house counsel considered to be a kind of mini MBA program.
In a time when the in-house bar has grown substantially, Rotstein says the CCCA plays an important role in offering career management resources and opportunities to help members grow to their next role.
“I remember when I was called to the bar there was really one place we looked for jobs and that was the Ontario Reports. For in-house, there were only ever maybe one or two jobs posted in the ORs. Now, a large number of the jobs advertised are for in-house or government. It’s a great area to be working right now,” he says.
And once in-house, Rotstein says lawyers quickly realize there are skills they don’t have that they need to gain, and in many cases they are working in solo departments or with just one paralegal to support them. That’s when being able to reach out to a community of other in-house counsel becomes important.
“That’s why I got involved with CCCA initially,” he says. “It’s nice to be able to pick up the phone and call others in a similar situation.”
Rotstein wants to see more members volunteering within the organization —something he has done for many years through mentoring and other areas.
“We want to encourage more of our members to share their expertise and connect with each other through mentoring and by speaking on topics they’re passionate about at our events,” Rotstein says. “Our members are full of talent and expertise, and we’ll be working to make better use of that collective wisdom throughout the coming year.”
Despite challenges in certain parts of the country such as Alberta, Rotstein says CCCA membership has been growing year over year.
“I’m always in recruitment mode asking people ‘Why aren’t you a member?’” he says.
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|(Left to right) Rod Northey, Renée Pelletier, Johanne Gelinas, with federal environment Minister Catherine McKenna and Doug Horswill. Pelletier says she is ‘excited and honoured’ by her appointment to the review panel.|
Renée Pelletier, managing partner at Olthuis Kleer Townshend LLP, has been appointed to the federal government’s environmental assessment review panel.
Pelletier is of the Maliseet First Nation from Nova Scotia whose practice focuses on aboriginal and treaty rights litigation. A member of the Indigenous Bar Association, Pelletier has worked at Aboriginal Legal Services of Toronto, volunteered for the Native Women’s Resource Centre and was a Native Court Worker at College Park Criminal Court.
Federal Environment Minister Catherine McKenna announced Monday that the four-person panel will deliver a long-promised review of how natural resource development projects are approved in Canada.
Environmental lawyer Rod Northey, partner at Gowling WLG, joins Pelletier, with Johanne Gelinas, former federal commissioner of environment and sustainable development, leading the panel and Doug Horswill, the retired vice president of Teck Resources, rounding out the foursome.
Pelletier says she is “excited and honoured to have been provided the opportunity to contribute to the government’s review of environmental assessment processes.”
The panel aims to “introduce new processes that are robust, incorporate science, protect the environment, respect the rights of indigenous people and support economic growth,” Pelletier says.
“Additionally, the panel is aware of the importance of this review as it relates to the government of Canada’s support of the principles of the United Nations Declaration on the Rights of Indigenous Peoples and its goal of renewing its relationship with Indigenous people and moving towards reconciliation. Further to this end, the panel has been directed by its terms of reference to reflect the principles of the declaration in its recommendations, as appropriate.”
According to a press release, “Panel members were selected based on their knowledge, experience and expertise relevant to federal environmental assessment processes. The Minister also considered the need for diversity in terms of Indigenous, regional and gender representation.”
“The panel had the opportunity to meet with the minister of Environment and Climate Change,” Pelletier says. “We shared with her our goal, which is to deliver to her a robust report summarizing our recommendations and the input we receive from Canadians.”
The panel will take into account industry’s concerns that environmental assessments are too lengthy and complicated, as well as environmentalists’ complaints the process fails to consider the protection of fragile ecosystems.
The panel will also take into consideration other reviews being conducted by Natural Resources, Fisheries and Oceans and Transport Canada.
The panel begins its work, starting with consultation opportunities, next month and is scheduled to finish by the end of January 2017.
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The Nova Scotia Barristers’ Society will not seek leave to appeal the provincial top court’s finding that its council’s resolution not to accredit Trinity Western University is invalid.
NSBS had made changes to its regulation to allow it to decline accreditation to the Evangelical Christian university’s law school. Like law societies in Ontario and B.C., NSBS took issue with TWU’s community covenant, which requires that members refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
But the Nova Scotia Court of Appeal found the wording of NSBS’s amended regulation went beyond the regulator’s authority under the Legal Profession Act. On Monday, NSBS announced it has accepted the court’s findings.
“The Nova Scotia Court of Appeal has confirmed that the change that we’ve made is ultra vires, so we’re going to put the regulation back to the way it was,” says Darrel Pink, executive director of NSBS.
Putting the regulation back to its former wording means that if TWU’s law school starts operating, its graduates can article and become licensed in Nova Scotia, Pink also says.
“We’re accepting the finding of the court that we went a little bit too far,” Pink says. “That having been said, we certainly recognize that there are court proceedings in two other jurisdiction — one in B.C, where they’re waiting for a decision from the court of appeal, and of course the likely Supreme Court of Canada appeal out of the Ontario Court of Appeal.
“I think a prudent course of action may be to see what comes out of the other proceedings and that would give us something further to consider,” Pink adds.
The original prerequisite for a law practice licence in Nova Scotia asked for, among other things, a bachelor of laws degree or a juris doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada.
But NSBS amended its regulation to add a qualifier that says a person meeting this criterion could be licensed, “unless council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act.”
However, a lower court found, and the Nova Scotia Court of Appeal agreed, that the barristers’ society has no power to unilaterally determine that TWU unlawfully discriminates in its admission and enrolment process.
“Nothing in the Legal Profession Act authorizes the Society to issue an independent ruling that someone has violated Nova Scotia’s Human Rights Act. Nor does the Human Rights Act, R.S.N.S. 1989, c. 214, as amended, contemplate the society’s intervention,” the Nova Scotia Court of Appeal said, adding also that the Charter doesn’t apply to TWU, a private institution.
“The amended regulation does not merely authorize the council to weigh human rights or Charter values in the exercise of an administrative discretion to promote diversity in the practice of law. Nor does it just say the council may consider a ruling, issued by a tribunal constituted under the Human Rights Act or a court of competent jurisdiction under the Charter, that the university has violated the Human Rights Act or Charter,” the court of appeal also said. “Rather, the amended regulation directs the council to make a free-standing determination whether the university ‘unlawfully’ contravened the Human Rights Act and Charter.”
The court of appeal said the Ontario equivalent of this regulation is “instructive,” and suggested NSBS is free to amend its rules to mirror that of the Law Society of Upper Canada’s. In Ontario, the regulation broadly says only law degree holders from a law school accredited by the Law Society of Upper Canada can be licensed to practice law in that province.
Pink admits NSBS’ council can go back to the drawing board and amend its regulation to look like its Ontario equivalent, but he says it’s “prudent” to first wait and see how the proceedings in Ontario and B.C. conclude.
“At that time, we will see whether council wishes to make another regulation or not,” Pink says.
The Ontario Court of Appeal has upheld LSUC’s decision not to accredit TWU’s law school, and the university has said it will seek leave to appeal that decision at the Supreme Court of Canada.
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- Federal Attorney General Jody Wilson-Raybould told the Canadian Bar Association conference in Ottawa that improving relationships with indigenous Canadians is top of mind for the government
|Jody Wilson-Raybould says indigenous Canadians are among the ‘most marginalized’ people in the country. (Photo: Gabrielle Giroday)|
Canada’s federal Minister of Justice and Attorney General Jody Wilson-Raybould told a crowd of hundreds of lawyers that the federal government is committed to improving relationships with indigenous people, as well as promoting diversity on the bench.
“Many of the issues we face as a country have a justice element to them, and which is why our government has embarked on a very ambitious agenda, and an effort to reform our justice system,” Wilson-Raybould said to lawyers from across Canada gathered in Ottawa last week for the Canadian Bar Association’s annual conference. Wilson-Raybould was the conference’s keynote speaker Friday morning.
She dedicated much of her keynote address to calling attention to justice issues related to indigenous Canadians, and reaffirmed the concept of “re-building the nation-to-nation relationship.”
“It is a sad reality that many members of indigenous communities are among the most marginalized segments of our population, and that they are over-represented both as offenders and victims in the justice system,” said Wilson-Raybould.
Referencing her experience as a former Crown prosecutor in Vancouver’s downtown east side, Wilson-Raybould said indigenous men were often charged with non-violent property crimes, and then got caught in a “vicious cycle within the system” that led them to spending more time behind bars than outside.
“In fact, incarceration rates for indigenous people in some parts of Canada are up to 33 times higher than for non-indigenous people,” she said.
Wilson-Raybould pointed to a report from the federal Office of the Correctional Investigator that illustrated the gap. From 2005 to 2015, she said, the indigenous inmate population increased by 50 per cent, compared with the overall growth rate of 10 per cent.
She also noted that while indigenous people make up 4.3 per cent of the population, they represent more than 25 per cent of inmates. She also said that indigenous women comprise 37 per cent of all female inmates serving a sentence of more than two years.
“This is totally unacceptable,” she said.
Wilson-Raybould said administration of justices cases — such as parole breaches — make up more than 20 per cent of all Crown cases, and cost more than $700 million per year.
“We need to find ways to allow for more discretion in differentiating and treating administration of justice offences,” she said, saying resources spent on minor offences could be freed and used in “more meaningful” ways. Part of the new federal government’s approach is reviewing changes in sentencing that happened under the Harper government, and the use of discretion when it comes to measures such as restorative justice and sentencing circles.
Wilson-Raybould also addressed the issue of judicial vacancies across Canada. The day before Wilson-Raybould’s remarks, Supreme Court of Canada Chief Justice Beverley McLachlin had told media “the perpetual crisis of judicial vacancies in Canada is an avoidable problem that needs to be tackled and solved.”
“I am very sensitive to the pressures that courts throughout the country are currently experiencing due to judicial vacancies,” Wilson-Raybould told the CBA audience.
“As you know, the government has already made the 15 appointments to trial and appellate courts and we are taking steps to both strengthen the process and to fill remaining vacancies, and I look forward to publicly announcing our intentions in this regard very soon.”
Wilson-Raybould also voiced a commitment to gender parity on the bench, and said recent appointments made to provincial Superior Courts reflect that.
In June, the federal government announced its first judicial appointments since taking office last fall. There were 15 appointments, including six in Alberta, five in Ontario, two in British Columbia, one in Quebec, and one in the Federal Court of Appeal.
Of the 15, 10 were women and five were men.
Earlier this month, Prime Minister Justin Trudeau announced a new process for judicial appointments to the Supreme Court of Canada, including a seven-member advisory board that will compile a short list for consideration. Any qualified judge or lawyer can apply, as long as they meet requirements that include functional bilingualism.
“Getting the balance right — whether in terms of gender, race or ethnicity — is extremely important and speaks to the need for fairness and accessibility,” Wilson-Raybould said.
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