Legal Feeds Blog
Métis groups and aboriginal lawyers are praising a report released today that makes 17 recommendations to the federal government on how to advance reconciliation with the Métis Nation.
|A report issued today by aboriginal lawyer Tom Isaac says Métis people fall under the same mandate that Inuit and First Nations people do, yet the attention they are shown is ‘utterly disproportionate’ in a negative way.|
Isaac's report, entitled, "A Matter of National and Constitutional Import” was released today. He was appointed in June 2015 to meet with Métis Nation governments, provinces, territories and other interested parties in order to assess the current state of affairs and provide independent advice and recommendations on Métis Section 35 Rights — the part of the Constitution that recognizes and affirms aboriginal rights.
“It was a tough thing to do, but it’s important work,” says Isaac. “What I was trying to get at in my report is that Métis people fall under the same mandate that Inuit and First Nations people do, yet the attention they are shown is utterly disproportionate in a negative way.”
Some of that, Isaac says, is due to lack of treaties, but when it comes to Aboriginal Peoples who hold Section 35 rights, it became apparent to him that more work needs to be done, especially in light of the fact that the Supreme Court of Canada has not indicated Métis rights should be treated any differently from a broader reconciliation approach from Inuit or First Nations.
“That was the fundamental message I was trying to get at,” he says.
“Because of the Constitutional element of it, it needs to be prioritized. We voluntarily amended the Constitution in 1982 to include Métis. My repeated references to ‘Section 35 Métis rights’ was very deliberate.”
In a statement, Métis Nation of Ontario president Margaret Froh offered thanks and appreciation to Isaac for the recommendations in the report.
"The MNO commends Mr. Isaac for his important work. As the home of the first and only Supreme Court of Canada decision — R. v. Powley — that has recognized Section 35 Métis Rights, this report is extremely important to the MNO who advanced this landmark Métis harvesting rights litigation on behalf of the Métis community in the Sault Ste. Marie region from 1993 to 2003. It is also gratifying that Mr. Isaac's report recognizes the MNO as a 'Métis government' and a leader on advancing Métis rights across the Métis Nation," said Froh.
Isaac was also focused on reconciliation in the report. In it, he states: “Reconciliation is more than platitudes and recognition. Reconciliation flows from the constitutionally protected rights of Métis protected by Section 35 and is inextricably tied to the honour of the Crown, and must be grounded in practical actions.”
Isaac's report makes 17 recommendations and includes key findings to help guide future federal action on Métis Section 35 Rights issues, including the need for:
• Development of a Section 35 Métis Rights Framework that will be implemented with Métis communities who meet the legal framework set out in the R. v. Powley case.
• Métis inclusion within existing federal claims processes available to other Aboriginal Peoples or the development of a new Métis-specific claims process to address unresolved Métis claims like the “Treaty 3 [Halbreed] Adhesion” and other breached Crown promises to the Métis.
• A “whole-of-government” approach for improved information and knowledge about the Métis and Métis Section 35 Rights among federal officials and indigenous and Northern Affairs Canada regional offices, including improving Crown-Métis consultation processes.
• Timely, stable and long-term federal funding to support Métis governments like the MNO, including permanent support for the MNO centralized registry.
• A comprehensive review of existing federal programs and services available to indigenous peoples as well as all future federal initiatives to ensure they deal with the Métis distinctly and equitably.
Indigenous rights lawyer Jason Madden, partner with Pape Salter Teillet LLP, says despite Powley in 2003, Manitoba Métis Federation v. Canada in 2013 and Daniels v. Canada in 2016 in which the Supreme Court has been saying reconciliation with the Métis has to happen, now an appointed independent expert has said it needs to happen, too, and here is a way to go about doing it.
“He’s being quite assertive and putting down some solid markers,” says Madden.
“The wonderful thing about Mr. Isaac’s report is he sets out a road map with practical mechanisms. Now we have the trifecta of the Métis case law: Powley that deals with Métis Section 35 rights, Manitoba Métis Federation that says Métis have outstanding land claim related claims, and Daniels that says the federal government has jurisdiction for them like all aboriginal people. You put those pieces together and there is the inevitable conclusion that reconciliation needs to happen with the Métis, negotiation of a claims process, etc.”
Madden also notes that there is also now “a government in Ottawa that is a willing party on all of this.”
On Tuesday, Isaac was also appointed ministerial special representative regarding the Akaitcho Dene First Nation and the Northwest Territory Métis Nation negotiations and overlapping interests regarding one of the last outstanding land claims in the north.
|Lawyer Jay Strosberg says the Class Proceedings Act was proclaimed and enforced in 1992 and since then, the Court of Appeal has never addressed the issue of carriage.|
Two groups of Bay Street law firms are battling for the right to represent the plaintiffs in a multi-billion-dollar securities class action against Barrick Gold Corporation.
In what’s believed to be the first carriage matter to reach the Ontario Court of Appeal, the court awarded the case to a group of firms led by Rochon Genova LLP instead of another group of law firms led by Koskie Minsky LLP. If it’s certified, the Barrick Gold case will be one of the largest securities class actions in Canada.
“The Class Proceedings Act was proclaimed and enforced in 1992 and since then, the Court of Appeal has never addressed the issue of carriage,” says Jay Strosberg, partner at Sutts Strosberg LLP, which is part of the Koskie Minsky group.
In Mancinelli v. Barrick Gold Corporation, the Court of Appeal said the lower court judge was correct to give carriage to Rochon Genova, which presented a broader claim than Koskie Minsky and had done “more extensive preparation” on the file.
Koskie Minsky had argued its claim was more “workable” than Rochon Genova’s and that “less is more” when it comes to the scope of an action. But in choosing Rochon Genova’s action, the court said the term “workability” is not found anywhere in the authorities.
“While some cases have given preference to ‘lean’ actions over more comprehensive ones, I would reject any firm rule that ‘less is more’ or, indeed, that ‘more is better,’” said appeal court Justice George Strathy, who wrote on behalf of the court. “The ultimate question is whether the proposed strategy is reasonable and defensible.”
Joel Rochon, partner at Rochon Genova, says Strathy carefully reviewed the factors to be considered. “He has also taken pains to emphasize that the list of factors is not exhaustive and there may be other factors to be considered depending on the unique circumstances of the case.”
Meanwhile, Paul Pape, who represented Koskie Minsky, said his clients are considering an appeal to the Supreme Court of Canada.
“I am unable to comment on the reasons as the Koskie Minsky group is considering an application for leave to appeal to the Supreme Court of Canada,” Pape said in an e-mail to Legal Feeds.
To Strosberg, this case was a missed chance for the Court of Appeal to clarify a confusing and inconsistent area of the law. Rather than highlighting the important factors to consider when it comes to awarding carriage, the Court of Appeal simply deferred to the lower court judges’ opinion on which factors were important in this case, Strosberg adds.
“We now have close to a 20-part test on a carriage motion. That test, at best, is applied inconsistently,” Strosberg continues. “From the perspective of a class action plaintiffs’ lawyer, preparing for these cases has become somewhat of a moving target in that you have so many factors but...there is no one test that’s consistently applied.
“The Court of Appeal had an opportunity to establish a coherent framework to resolving carriage disputes and in my view, it did not do so,” Strosberg adds.
Koskie Minsky argued that in its attempt to win carriage, Rochon Genova disclosed its preliminary expert reports against the interest of the class. According to Strosberg, the court of appeal should have weighed in on this issue. He says disclosing an expert report so early in the case is “a tactical mistake” that prejudices the class.
“What happens is you’ve effectively given the defendants a draft expert report, which they’re not entitled to see,” he says. “You have to understand that a carriage motion is a very early procedural motion that has nothing to do with the defendants.”
Strosberg says in every single carriage dispute going forward, plaintiffs’ counsel will be forced to reveal their draft expert report in an attempt to show the extent of their preparation.
But Rochon says preliminary expert reports provide an important glimpse into a considerable preparation. It shows the court that “you’re on top of this and you’ve done your homework,” he says.
“My view is that this is an important yardstick to apply when considering which firm should get carriage,” Rochon adds. “It may not be appropriate in every case but in a significant, complex securities case such as this, the degree of preparation and understanding the overall case was at the heart of the carriage decision.”
In this dispute, Koskie Minsky said the court shouldn’t award Rochon Genova the case because of the history of judicial criticism of the Merchant Law Group, one of the members of the Rochon consortium. The Merchant Law Group has gotten a lot of flak from the courts for its fee-sharing arrangements.
“The appellants’ position with respect to Merchant is hypocritical, Rochon says, given that members of the Koskie consortium had their own history of co-counsel agreements with Merchant,” Strathy said.
“The motion judge was clearly aware of these duties and of Merchant’s history and I am not prepared to say that he erred in the exercise of his discretion in awarding carriage to Rochon in spite of Merchant’s participation in that consortium,” Strathy also said.
Cyclist killed after being hit by car in Brampton, Canadian Press
The Law Society of British Columbia has submitted a report to federal Justice Minister Jody Wilson-Raybould outlining a series of recommended principles for the appointment of justices to the Supreme Court of Canada.
|Law Society of B.C. bencher Craig Ferris says there should be greater transparency into how SCC judges are appointed.|
The report entitled “Principles for the Appointment of Justices to the Supreme Court of Canada” was released yesterday and written by a subcommittee of the Rule of Law and Lawyer Independence Advisory Committee including Craig Ferris, a partner at Lawson Lundell LLP, Jeff Campbell, a partner at Peck and Company, and Jon Festinger of Festinger Law & Strategy LLP.
The report was approved by benchers at their July 8 meeting and sets out four principles the law society views as essential to the process of appointing justices to the Supreme Court: transparency; judicial independence; merit and diversity; and public participation.
“When you look at the issues that really affect the everyday life of Canadians, such as right to die, and the people making those decisions, we really should have some transparency into how they came to be in that position to make those decisions for us,” says LSBC bencher Ferris, who chaired the committee.
In the past, under former Liberal minister of justice and attorney general Irwin Cotler, there was an appointment process that involved a parliamentary hearing and nominees appeared in person at the hearing, says Ferris. But the hearing process was abandoned for the two most recent appointments to the SCC.
Cotler himself has also recently called for changes to the selection process.
Under the principle of merit and diversity, the report appears to try and get at past criticisms that appointments were politically motivated.
“The primary criterion for appointments to the Court should be merit. In order to maintain confidence in the institution of the Court, the appointment process should avoid any appearance of partiality or partisanship. Politicizing the appointment process threatens the legitimacy of the Court and the principle of judicial independence.”
Ferris says there should be a greater examination of the process to establish some precedent so governments can be held accountable to following a set process.
In March, it was announced that Justice Thomas Cromwell will resign from the Supreme Court of Canada effective Sept. 1. The current government has stated its intention to review and renew the process for judicial appointments to the courts.
In the past, the Federation of Law Societies has provided input on the issue. In 2004, the Federation sent a submission to the federal government recommending principles for the appointment process. In 2008, the Federation wrote to the minister of justice with recommendations.
“That’s one of the reasons we decided to take up the torch about the issue again,” says Ferris. “We thought the Cromwell resignation meant that this was going to move rather quickly and we thought if we want to get into the discussion and be part of the debate we need to act quicker rather than later as opposed to force it on to the federation’s agenda, which can take some time.”
In a statement, the BCLC stated: “The Supreme Court of Canada is a vital component of Canada’s constitutional democracy. It plays a key role in maintaining the rule of law and is a cornerstone of the legal fabric of Canada. Accordingly, the process by which Supreme Court Justices are appointed directly impacts the public interest.”
The current process by which candidates are evaluated and selected is largely unknown. For a number of recent appointments to the court, the appointment process changed from one appointment to the next.
The law society’s position is that incorporating the four principles identified will enhance public confidence in the court.
“I do think there is an opportunity with the new federal government — they’ve talked about reviewing the process of appointing judges generally and that should include the Supreme Court of Canada judges, and I’m hoping that this acts to spur on that debate and we get to be part of that discussion,” says Ferris.
- Case relates to comments about expert witness in 2012 personal injury trial
A Vancouver journalist has been ordered by the Supreme Court of British Columbia to hand over his notes in relation to a law society investigation.
|Michael Feder says a recent B.C. Supreme Court decision ordering a journalist to turn over his notes was not surprising.|
Mulgrew had written in 2012 about Thomas Harding, a B.C. lawyer who ended up under investigation by the law society for his role in Walker v. Doe, a personal injury trial.
Amrit Toor, a forensic engineer specializing in accident reconstruction retained by the Insurance Corporation of British Columbia to testify at the trial, had demanded an apology from Mulgrew and Postmedia following a Vancouver Sun article that included Harding’s commentary on Toor’s skills. Toor also sued Harding and Mulgrew, Postmedia, and the newspaper’s editor-in-chief for defamation.
“The presiding judge declared a mistrial following Mr. Harding’s address to the jury. The statements attributed to Mr. Harding in the Vancouver Sun article were critical of Dr. Amrit Toor, an expert witness who testified at the trial on behalf of the defendants,” said the recent Supreme Court ruling by Justice G. Bruce Butler.
Through their counsel, Mulgrew and Postmedia argued that they should not have to fulfil production orders by the law society and turn over notes made by the journalist, because to do so would violate both s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms. They also argued that section 26 of British Columbia’s Legal Profession Act — which states materials must be provided “even if it is confidential or subject to solicitor client privilege” — did not apply to them.
“The petitioners seek relief on the basis that the production provisions of s. 26 of the LPA, when considered in light of common law statutory interpretation principles and in light of provisions of the Charter, do not apply to them,” said Butler, in the ruling.
As the ruling goes on to note, this argument rests on the idea there are two categories of people who could receive production orders.
The first group is made up of “people who are either regulated by the Law Society or directly connected with lawyers.”
“The petitioners say they are part of a group of people in the second category, including the media and members of the public, who are only indirectly related to any investigation of a member of the Law Society (the “Non-Regulated Group”).
The petitioners say that s. 26(4) does not extend to members of the Non-Regulated Group and that an investigator appointed by the Law Society does not have the jurisdiction to make an order under that section against the Non-Regulated Group,” explains Butler, in the ruling.
However, Butler ruled that Mulgrew had to turn over his notes, noting “the nature of the legal profession is such that the Law Society could not investigate complaints about its members without access to privileged information.”
“I agree with the Law Society’s position. It is evident that there are many different circumstances under which the Law Society might issue a production order for records in a party’s possession which might be subject to solicitor-client privilege,” he said.
Michael Feder, a partner in the litigation group of McCarthy Tétrault LLP in Vancouver who represented the Law Society of British Columbia and its designate Kurt Wedel, says the decision was “not a surprising ruling” that was “totally in keeping with prior decisions.”
“First of all, the Supreme Court of Canada and other courts have repeatedly emphasized the crucial role the professional regulators like the law society play in protecting the public interest, and in that connection, they’ve also emphasized the need of those professional regulators to be able to compel documents and information relevant to investigations from anyone possessed of them,” says Feder.
Man killed in crash involving stolen car near Ottawa: police, Canadian Press
Person in custody after woman killed in hit and run in Brampton, Canadian Press
Trial resumes for man charged in Quebec election-night shooting, Canadian Press
The Supreme Court of Canada has thrown out the appeal of 32 Quebec law firms who claimed Ontario courts did not have jurisdiction over a third-party claim brought against them by Cassels Brock & Blackwell LLP.
|Daniel Bach says an SCC decision is logical, as it will put all third party defendants in the same proceedings, limiting waste and avoiding inconsistent decisions.|
In a six-to-one decision, the Supreme Court dismissed the group’s appeal, saying the third-party claims against the Quebec law firms should be heard along with those against 118 other firms from across the country.
“Allowing the Quebec third party claims to proceed in Ontario along with the 118 other law firms, would clearly by a more efficient and effective solution,” Supreme Court Justice Rosalie Abella wrote for the majority decision.
“Because third party claims involves a significant number of parties and require the mobilization of significant judicial resources, those resources should be allocated and expended with a view to make the litigation quicker, more economical and less complicated.”
The decision involved a class action lawsuit brought against Cassels Brock by former General Motors car dealers who alleged the firm provided them with negligent legal advice when it represented them after GM announced a restructuring in 2009.
The dealers claimed Cassels Brock had failed to disclose it was also acting for the federal government during the restructuring proceedings.
In that action, an Ontario Superior Court Justice ordered Cassels Brock to pay 181 former GM dealers $45 million for breach of fiduciary duty, breach of contract and professional negligence. Cassels Brock is now appealing the decision.
Cassels Brock added 150 law firms from across the country as third party defendants, 32 of which were from Quebec.
There were 83 non-Ontario firms in total who challenged the province’s jurisdiction, but the Quebec firms were the only ones that appealed, arguing that Ontario courts do not have jurisdiction over a dispute between a firm and client in Quebec.
Daniel Bach, a class action lawyer at Siskinds LLP, says the decision makes sense, as it will put all third party defendants in the same proceedings, limiting waste and avoiding inconsistent decisions.
“It does not strike me as anything other than extremely common-sensible to say that when there is a lot of litigation in one province, you can bring other related litigation in to that province,” he says.
“Making a system where our courts can deal with things once in a sensible fashion makes lots of sense,” he added.
In the SCC decision, Abella cited Club Resorts Ltd. v. Van Breda, 2012, which laid out four factors to establish requisite connection in tort claims.
The factor that Abella applied was whether the contract in the dispute was created in Ontario. Abella said that seeing as the contract connected to the dispute had been made in Ontario, the province’s courts have jurisdiction.
“It is sufficient that the dispute be connected to a contract for the wind-down agreement was made in the province or territory where jurisdiction is proposed to be assumed,” Abella wrote.
“This merely requires that a defendant’s conduct brings him or her within the scope of the contractual relationship and that the events that give rise to the claim flow from the relationship created by the contract.”
Abella added that when contracting parties are located in different jurisdictions, “the contract will be formed in the jurisdiction where the last essential act of contract formation, such as acceptance, took place.”
Justice Suzanne Côté, who was the lone dissenting voice in the decision, argued the wind-down agreements were not made in Ontario as acceptance of the contracts should be considered notified in the place they were received – Quebec.
“In this case, GM’s notice of final acceptance was transmitted to its Quebec dealers in Quebec,” she said.
“As such the relevant wind-down agreements in respect of the Quebec dealers would have been formed in Quebec.”
She added that the majority’s decision could have “negative repercussions on the practice of law itself.”
“The majority’s holding means that whenever a lawyer’s advice is required before his client can accept an offer, that lawyer may later be sued for professional negligence wherever the resulting contract is formed, regardless of where his services were provided,” she said.
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