Legal Feeds Blog
The Supreme Court of Canada’s three hearings this week are in civil cases, including a patent infringement case, a lawyer’s challenge to his Bar, and a Charter case concerning collective agreements.
November 8 – Federal – AstraZeneca Canada v. Apotex
Civil: The applicants owned a patent for esomeprazole, a proton pump inhibitor used in the reduction of gastric acid, reflux esophagitis and related conditions. It was sold under the name Nexium, and was a very successful product for AstraZeneca. The respondents applied to the Minister of Health to obtain a Notice of Compliance which would allow it to sell its generic version of the drug; AstraZeneca then brought a prohibition application under the Patented Medicines Regulations to prevent Apotex from entering the market until after the expiry of its patent. In 2010, that application was dismissed and Apotex commenced sales of its generic esomeprazole. AstraZeneca brought an action against Apotex for patent infringement, and Apotex counterclaimed to impeach the patent.
Civil: Sidney Green, who was called to the Bar of Manitoba in 1955, did not comply with the Law Society of Manitoba’s requirement to complete a minimum of twelve hours of annual continuing professional development activities. Green challenged those rules under which the LSM had suspended his practicing certificate, arguing that The Legal Profession Act did not explicitly permit the LSM to enact mandatory CPD rules and to enforce those rules with the imposition of a suspension. He also argued that the rules violated the principles of natural justice because they gave the LSM authority to impose a suspension without a right of hearing or appeal.
Read the Manitoba appellate court decision
Read related news stories:
Manitoba lawyer vows to take CPD fight to top court, Canadian Lawyer
Can a lawyer be compelled to learn? CanLII connects
November 10 – British Columbia – British Columbia Teachers’ Federation v. R.
Charter of Rights: In 2002, British Columbia passed two statutes dealing with collective agreements for public sector workers in the field of education: the Education Flexibility and Choice Act and the Education Services Collective Agreement Amendment Act. In 2011, the Supreme Court of British Columbia found the legislation unconstitutional because it infringed s. 2 (d) of the Charter, and the infringement was not justified under s. 1 of the Charter. British Columbia then enacted a new statute, The Education Improvement Act, that included sections previously declared unconstitutional, and the BCTF challenged the new act’s constitutionality. The trial judge granted the BCTF declaratory relief plus $2 million in Charter damages; the Court of Appeal for British Columbia allowed the appeal but set aside the damages award.
Read the British Columbia appellate court decision
- Davies associate to represent nanny pro bono
A Quebec lawyer has been denied leave by the Supreme Court of Canada in a motion to have her former firm barred from representing her former nanny pro bono in a $24,000 lawsuit.
|Jacqueline Sanderson sued her former live-in nanny and then filed a motion to bar her former firm from acting pro bono for the nanny.|
Jacqueline Sanderson was denied leave on Thursday for her motion to remove a lawyer from Davies Ward Philliips & Vineberg LLP, where she worked for seven years, off the case in which she sued her former live-in nanny.
Sanderson argued that having the Davies lawyer, Leon Moubayed, act on the case was a conflict of interest.
Earlier this year, the Quebec Court of Appeal reversed a decision by the Court of Quebec that prohibited Moubayed from representing the nanny, May Ostos Mangadlao. The appeals court found that Mangadlao had a right to choose her lawyer.
“It’s a fundamental right for the client to be able to choose his or her lawyer and that’s the basic principle,” says Sylvain Lussier, the lawyer who represented Mangadlao on the appeal.
“It is not for the lawyer and it’s not for the client to justify why. You don’t have to tell the court.”
Sanderson argues that while the nanny has the constitutional right to be represented by a lawyer, she does not have the right to choose a lawyer if there is a conflict of interest.
Sanderson sued Mangadlao, who worked for her between 2011 and 2013, for leaving without giving proper notice, resulting in alleged lost business opportunities.
Sanderson said she launched the lawsuit only after Mangadlao had filed a number of actions against her in the Quebec Human Rights Tribunal and the province’s labour standards commission.
She says she filed her suit as a counter claim to Mangadlao’s actions, as she could not do so in those tribunals.
“It was more like a countersuit, because she’s suing me,” she says.
She then filed a motion to have Moubayed disqualified when she found out he was acting for Mangadlao.
Sanderson has argued that Moubayed’s involvement in the case presents a conflict of interest as Davies still has confidential information about her. Sanderson worked at Davies until 2005, when she says she was fired.
Lussier, who is a partner at Osler Hoskin & Harcourt LLP, says Moubayed does not have to justify why it’s appropriate for him to represent her or why he took the case pro bono.
“As a question of principle, we don’t have to tell her. It’s none of her business,” he says of Sanderson.
“At the end of the day, it is also a matter of solicitor-client privilege. It’s the relationship between the client and the lawyer and the lawyer doesn’t have to justify the mandate,” he adds.
He also says that the motivation of the lawyer for representing Mangadlao is not grounds for disqualifying him.
Lussier says he was shocked to hear Sanderson had applied for leave to appeal her $24,000 case to the Supreme Court of Canada.
Moubayed declined to comment on the case, citing confidentiality orders that are in place.
Trinity Western University’s battle over accreditation may be headed to the Supreme Court after its win this week at the British Columbia Court of Appeal. The appeal court decided in favour of the evangelical Christian school’s planned law faculty’s right to have its graduates accredited by the Law Society of British Columbia.
|Raji Mangat, director of litigation for West Coast Legal Education, expects the law society to appeal to the Supreme Court.|
“I would be very surprised” if the Law Society of British Columbia didn’t appeal the decision to the highest court, says Raji Mangat, director of litigation for West Coast Legal Education and Action Fund, whose organization was one of several interveners in the case.
At issue in the case is the university’s community covenant with its students, which bans sexual relations outside of heterosexual marriage as well as abortion. In a unanimous decision, though, a panel of five judges on B.C.’s appeals court found that the negative impact on the school’s religious freedoms would be “severe,” whereas accreditation of the university’s law school would have a minimal effect on lesbian and gay rights, and therefore would not help the B.C. law society meet public interest objectives.
“The Law Society’s decision not to approve TWU’s law school is unreasonable because it limits the right to freedom of religion in a disproportionate way – significantly more than is reasonably necessary to meet the Law Society’s public interest objective,” the court wrote in a lengthy judgment.
The law societies of Nova Scotia and Ontario have also challenged TWU’s bid for recognition of its law school (now planned to open in the autumn of 2018, with 60 seats). Nova Scotia’s Court of Appeal rejected the Nova Scotia Barristers’ Society’s efforts to deny TWU’s law graduates accreditation. However, Ontario’s Court of Appeal upheld a ruling against TWU, and in response the university filed an application in September for leave to appeal that decision to the Supreme Court.
If British Columbia’s law society plans to appeal the most recent decision, “it would need to move sooner rather than later” in order to have its appeal heard together with the appeal of the Court of Appeal of Ontario’s decision, says Mangat.
Administrative law points formed much of the B.C. appeals court judgment, she suggests, as they did in the Nova Scotia Court of Appeal.
The B.C. appellate court “went through a number of the administrative arguments which were raised by TWU about process, and whether the law society had either sub-delegated unlawfully its decision-making power to its members in holding a referendum” on the case, Mangat explains. “There was also a question as to whether the law society’s home statute allows them to look beyond anything but the academic merit of a program that’s being proposed.”
The court found that the law society did have jurisdiction to consider factors other than the adequacy of an academic program in deciding whether to deny approval to a law faculty; and, that there was no improper sub-delegation of decision-making authority through the results of the referendum, she says. But, “they did find that the benchers did fetter their discretion by declaring themselves bound to follow the results of the referendum [that members of the law society voted in], but without deciding whether the law society statute allows for that sort of fettering.”
Mangat says the B.C. appellate court steered clear of discussing the aspect of sexual discrimination that West Coast LEAF had argued.
“There is … an element of sex discrimination in that covenant, as well as discrimination on the basis of marital status,” since students are prohibited from having sex outside marriage or procuring abortions.
The Law Society of British Columbia is withholding comment at present as to whether it is likely to appeal the B.C. appellate court’s judgment on Tuesday. “The BC Court of Appeal decision in the Trinity Western University law school matter adds another dimension to an already complex issue,” the law society said in an emailed statement. “The Law Society will be reviewing the decision and considering next steps.”
Amy Robertson, Associate Director, Media and Public Relations for Trinity Western University said the school was “very encouraged” by the decision.
“As Canadians, we are proud of our diversity and our pluralism, and our acceptance of people who are different. We are committed to respecting people even if we disagree on things. There are people in other countries who don’t enjoy that. And so we’re very thankful for this decision.”
Further, she says, “the [legal] decisions that have come through have been pretty clear about the fact that our covenant does not amount to unlawful discrimination. In 2001, the Supreme Court of Canada said the same [in Trinity Western University v. British Columbia College of Teachers]. If LGBTQ students would like to come to Trinity Western and sign the covenant, they are more than welcome to do so, and many do choose to come.”
L.A. TV anchor arrested on suspicion of stealing headphones, Canadian Press
A new interim head of Legal Aid Alberta joins the organization as it faces significant financial issues.
|Maria David-Evans is the new interim president and chief executive officer at Legal Aid Alberta.|
Maria David-Evans has been appointed as the interim president and chief executive office at LAA after former president and chief executive officer Suzanne Polkosnik resigned.
“I officially started on [October] the 26th, was when I was introduced to the staff,” says David-Evans.
She has extensive work experience in the public sector, including 31 years with the City of Edmonton.
She was a member of the Legal Aid Alberta board from August 2013 to September 2016, and she also served as a deputy minister for the Government of Alberta.
LAA — which has about 280 employees — has made headlines for funding challenges it has faced.
Earlier this year, in April, the media reported that the non-profit agency had received 37-per-cent more requests for service in the first three months of this year.
“Our issue has been funding . . . that continues to be a critical issue,” says David-Evans.
She says that, due to the economic downturn, there is still a higher amount of clients coming to LAA.
“If you looked just the other day, domestic violence in Calgary is the highest . . . they think that already this year it’s risen 36 per cent, so many of those people, of course, come to our doors for services,” she says.
On Oct. 20, the province of Alberta announced a funding boost for Legal Aid.
“An additional $9.4 million is being provided to Legal Aid Alberta, which administers the province’s legal aid program, to cover its operations and ensure the continuation of services for Albertans,” according to a government news release.
“This increase brings the total provincial funding for 2016-2017 to $77.9 million. Since May 2015, the provincial government has increased legal aid funding by 20 per cent.”
Regardless, David-Evans says the agency is still facing a “huge” financial crunch for 2017-18.
“It’s probably in the order of between $10 [million] and $12 million that needs to be provided into our budget. We’re working collaboratively with the Alberta government to try to figure out how to resolve that and we’re pretty positive about that opportunity to look at it collaboratively as a corporate issue,” she says.
In November 2015, Polkosnik said the agency faced “unprecedented demand.”
“Legal Aid Alberta (LAA) is experiencing record call volumes and more Albertans than ever before are qualifying for legal representation. LAA has been chronically underfunded and this additional demand for service has created an even more desperate situation,” said an LAA news release.
The 2015 release announced service changes that included a three-per-cent increase in the Financial Eligibility Guidelines and more family duty counsel at the provincial and Queen’s Bench courts.
“The previous [provincial] government increased the financial eligibility guidelines back in  by 18 per cent, and this government also increased the financial eligibility guidelines by another three per cent to ensure that the poorest Albertans . . . have an opportunity to get legal representation when they need it, and to get it quickly, and so that needs to be funded,” says David-Evans.
“For this year, the government has, in fact, funded that, but it hasn’t been without trials and tribulations since we moved through the funding issue, and certainly, prior to that, the organization has made huge changes in services to accommodate the funding pressures.”
If there is a funding gap, David-Evans says the board will make recommendations to the minister, who is ultimately responsible for making service changes at LAA.
“What we want to do is work collaboratively with the government of Alberta, and their various ministries, that both benefit from the services of Legal Aid, as well as we want to ensure that they’re aware of the cost avoidance of our services, in other words, the downstream costs that they would have to bear if the services weren’t here,” she says.
David-Evans said there will be three partners involved in choosing a permanent president and chief executive officer for LAA — the Government of Alberta’s justice department, the Law Society of Alberta and Legal Aid Alberta.
David-Evans did not comment on the reasons for Polkosnik’s resignation.
“All I can tell you is that she tendered her resignation, the board accepted it and, because of the financial situation of the organization, and certainly, we only have a very few [vice presidents] left, the board wanted to ensure that there was stability in the organization, so they asked me to step in and see if I would do this on an interim basis,” she says.
David-Evans said there are 1,151 active status roster lawyers at LAA, plus 82 students at law. There are also 77 in-house lawyers at LAA, plus another eight lawyers in management/administrative roles.
One student dead, one injured after stabbing at B.C. school, Canadian Press
Canadian man pleads guilty to walking on Yellowstone spring, Canadian Press
In a decision released yesterday, the Ontario Court of Appeal has overturned a conviction based on a juror’s conduct, which was ruled to have created a reasonable apprehension of bias.
Derek Welsman, jury foreman in R. v. Dowholis and producer of the since cancelled Dean Blundell show, appeared on the radio show and “made derogatory comments about sexual activity between men,” the decision reads.
|Mark Halfyard says he wouldn’t be surprised if the case goes further because 'there’s such a disagreement between the majority and the dissent.'|
“It is unusual just because factually you don’t often have a situation where the comments made by a juror are essentially on the record and can be used as evidence in court to suggest they at least displayed the apprehension of bias,” says Mark Halfyard, criminal lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.
“It’s just a matter of happenstance because he just happened to be affiliated with this radio show and, therefore, word of the communications got back to the lawyers and they were able to file that material as fresh evidence on the appeal.”
Joshua Dowholis, an HIV-positive man convicted of sexual assault in 2014, will get a new trial due to Welsman’s conduct.
“I have concluded that the conduct of the juror created a reasonable apprehension of bias such that a new trial should be ordered,” said the judgment.
Jill Presser, principal at Presser Barristers and counsel for Dowholis, said in a press release that “the court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward. The court has elevated homophobia to the no-no list in the justice system and that is really significant.”
In the two-to-one decision, dissenting Justice David Doherty argued that the radio show was known to make fun of everything and aimed to be provocative, so comments made in that context can’t be seen as a reflection of the juror’s true beliefs. Although he noted that the remarks were “inappropriate and potentially hurtful,” he goes on to write that “sometimes a joke, even a joke that is offensive, is nothing more than a joke.
“The distinction between comments that are only intended to entertain and comments that provide real insight into the speaker’s beliefs can be difficult to discern,” wrote Doherty.
“I feel my position will be misunderstood, that I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” he wrote, but that is not the concern of the appeal court. A conviction cannot be quashed based on finding a juror offensive, he wrote. That can only happen when the court is “satisfied that the comments demonstrate a reasonable apprehension of bias giving rise to a miscarriage of justice,” a hurdle he did not feel the juror’s comments cleared.
Halfyard calls the disparity a difference of opinion between the judges when it comes to the type of venue in which the comments were made.
“When you’re assessing apprehension of bias, you have to look at the context under which the comments are made,” he says. “If they’re said in a hateful way where you’d actually expect the person to express bias as opposed to jest — I think there’s a real grey area there.”
Doherty did agree that a new trial was needed but on the basis of error in instructions to the jury by the trial judge.
In a detailed decision, Justice Mary Lou Benotto disagreed with Doherty and found that “the reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect and not be publicly ridiculed by the person judging him. I conclude that a reasonable person, knowing all the facts, would apprehend that consciously or unconsciously it was more likely than not that this juror would not decide fairly.”
Benotto writes that Doherty’s reference to racial bias in another court of appeal case, R. v. Parks, at para. 59 applies equally to bias against homosexuals.
“The likelihood that a bias against gay men would affect the juror’s decision-making process is greater given his willingness to publicly disregard instructions, engage in homophobic rhetoric, and mock the court process,” she writes in the majority decision. “The issue is not whether the juror meant what he said. Nor is it whether he was in fact unfair. The issue is the impression that his conduct created.”
In the release, Presser agreed the focus shouldn't be on “whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast" but on upholding the integrity of and appearance of fairness in the justice system.
Halfyard says he wouldn’t be surprised if the case goes further because “there’s such a disagreement between the majority and the dissent.”
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