Legal Feeds Blog
Aimée Craft, an assistant professor at the University of Manitoba’s law school, has been appointed director of research for the newly opened National Centre for Truth and Reconciliation.
|'It has been quite an honour to have been asked to take on this responsibility,' says Aimée Craft of her new role.|
“Our university was chosen for the centre, the only one of its kind in Canada flowing from the Truth and Reconciliation Commission settlement agreement,” she says. ‘We will be collaborating with other universities and partners across the country.
“Our work here will be centered around policy changes resulting from the TRC, research into the legacy impact on residential school survivors and their families, and larger societal relations in terms of reconciliation.
She says the centre aims to create a complete picture of the residential school story but there are still many questions and more and more information is still coming in.
“After all, the last residential school was just closed in 1996 and there are still survivors who are relatively young. And each school provided a different kind of experience,” she says. “We are continuing to build on the research.”
Craft says the work to create the new Truth and Reconciliation Centre began in February 2013, with the agreement to establish the centre at the university finalized in June, 2013. Craft was appointed to her role — in addition to her teaching duties at the university, in June.
Originally from Manitoba and of Métis-Anishinaabe background, Craft is a 2004 graduate of the Faculty of Law at the University of Ottawa.
“I first thought that I would pursue a career in environmental law,” she recalls. “But after taking a course in aboriginal law, I changed my mind. I found aboriginal law to be intellectually challenging and I have a personal connection.”
She spent about 10 years working for the Public Interest Law Centre in Winnipeg specializing in aboriginal law. She joined the University of Manitoba just over a year ago and is developing two courses: Indigenous legal traditions and a seminar related to the Truth and Reconciliation Commission.
Craft reports that students and archival staff are digitizing all the TRC archive material so it will be available online both for academic researcher and residential school survivors and their families no matter where they live in Canada.
“Our webssite should be accessible by November,” she says. “We needed to balance the need for privacy for survivors and their families and research needs before we were prepared to go online. We already have many people who want to view the archives.”
Researchers, she says, will be able to learn about the general history of residential schools as well as individual schools as well as delve into specific records concerning illnesses, for example, deaths and even the food that was served.
“We are also studying the experience of truth and reconciliation commissions in South Africa and Australia and seeing what we can learn from them.”
Craft’s term as director of research is for five years.
“,” she says.
“The residential schools issue is not just an Indian problem. It is a Canadian societal issue and we all have to work together on the process of reconciliation.”
Foreign claimants who are owed damages awarded in foreign courts are free to pursue enforcement of their claims in Canadian courts, despite the defendant’s having no connection to Canada or assets in this country.
|Cory Wanless says the decision sends a strong message multinationals can’t hide behind their corporate structure to prematurely halt enforcement actions.|
The decision marked the third defeat for Chevron on the merits of the case in Canadian courts. The villagers can now continue with a 2012 lawsuit against Chevron's Canadian subsidiary in a lower Ontario court.
The action stems from an environmental disaster occurring in Ecuador more than 20 years ago involving Texaco, a subsidiary of Chevron Corp. In 2011, Ecuadorian courts awarded the damages to 47 plaintiffs representing 30,000 villagers affected by the disaster.
By then, however, Chevron no longer had any assets in Ecuador, so plaintiffs sought enforcement in countries where Chevron’s subsidiaries operated — namely the United States, Brazil, Argentina, and Canada.
In the U.S., however, Chevron convincingly defended itself by presenting evidence that showed that plaintiffs’ counsel Stephen Donziger used corrupt means, including bribery, to obtain the Ecuadorian decision — leading the courts to bar enforcement in the United States.
In Canada, Chevron has argued that Canadian courts have no “real and substantial” connection in the case (the legal test set out in Club Resorts v. Van Breda) and its subsidiary, Chevron Canada is not liable — based on corporate veil principles — for allegations against the parent company.
Chevron won a stay of proceedings in the Ontario Superior Court, but was overturned at the Ontario Court of Appeal, whose decision was upheld today by the SCC in a unanimous decision written by Justice Clément Gascon.
“Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments,” the decision states.
“An unambiguous statement by this Court that a real and substantial connection is not necessary will have the benefit of providing a fixed, clear and predictable rule, allowing parties to predict with reasonable confidence whether a court will assume jurisdiction in a case with an international or interprovincial aspect and will help to avert needless and wasteful jurisdictional inquiries.”
Chevron said in a statement to Reuters it would argue in the lower Ontario court that the lawsuit should be stopped early on the grounds the initial judgment “is the product of fraud and other misconduct, and is therefore illegitimate and unenforceable.”
Dianne Saxe, a Toronto environmental lawyer who has studied the case, said the Ontario court would have to decide whether the original judgment was valid and if Chevron Canada’s assets could be seized to pay off the debt.
“Those are the two big things that are left open and those were always the main ones,” she said.
Cory Wanless, who represented human rights organizations as intervenors in the case, says the decision sends a strong message that multinational corporations cannot hide behind their corporate structure to prematurely halt enforcement actions before they can be heard.
“Chevron has been very adept at raising various procedural barriers, and this was an attempt to do that in Canada,” says Wanless.
According to Wanless, the SCC decision draws a sharp distinction between: (1) motions of first instance and (2) recognition and enforcement motions. In the former, because new obligations can be created by the courts, a “real and substantial” connection must be established in order to claim jurisdiction.
In the latter, however, the damages have already been established by a foreign court and therefore no substantial connection must be proven.
“The only connection for the Canadian court,” says Wanless, “is whether Canada should lend its assistance in enforcing that foreign judgment.”
While the court made no comment on U.S. judicial rulings that found corruption and bribery to have tainted the award, Wanless says he’s encouraged by comments that suggest — given the ease by which a corporation may transfer assets between subsidiaries in multiple jurisdictions — that the court recognizes that an evolution of the law may be required.
The decision states: “In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality.”
Although this decision does not address these “corporate veil” issues of inter-corporate liability, Wanless says a future hearing may deal with the matter:
“At the moment, transnational companies operate through a myriad of subsidiaries, which are ultimately controlled by the parent company but in law exist as separate persons. That principle — that there’s limited liability between the various subsidiaries — I don’t think it accords with modern business realities, and I think is in urgent need of updating.”
“This was not the right case for that in the Supreme Court’s view, yet — but it very well may be. This is not the last we’ve seen of this case, and given the history of the case and the strong motivating factors on both sides, this may end up at the Supreme Court again.”
With files from Reuters
Former Fond du Lac chief charged with fraud denies wrongdoing, Canadian Press
A week after winning the NDP nomination for Ottawa-Vanier, former federal prosecutor Emilie Taman was in Federal Court Tuesday, asking for a judicial review of the Public Service Commission of Canada’s decision not to grant permission for her to seek nomination as a candidate in the federal election.
|Emilie Taman says many consituents in the Ottawa-area riding she is running in reached out to her.|
In early July, Taman vacated her office, beginning what she called “an unauthorized leave of absence” to enter the contest for Ottawa-Vanier’s NDP nomination.
She had applied for a leave of absence last year, but the Public Prosecution Service of Canada refused, arguing her ability to return to work after the political race would be “impaired or perceived to be impaired.” After receiving a series of warning letters, Taman was fired weeks after leaving her office.
“I received I think it was three warning letters which basically indicated that I was to return to work immediately or face termination for abandonment of position,” she says. “I followed up by saying I don’t have an intention to abandon my position, and could you please just wait until my judicial review hearing.”
But the PSC, she says, replied that “despite my representations it had been determined that I had abandoned my position.”
Even if the judicial review is successful, it won’t result in her being reinstated, says Taman. Although she hopes a favourable ruling would help her termination grievance.
Above all she’s hoping it results in clearer guidelines for politically minded federal prosecutors in the future.
The PSC is declining to comment on the case, given that it is currently before the court. In addition, “The Public Prosecution Service will not comment on personnel, past or present,” a spokesperson told Legal Feeds.
The nomination battle appears to have been tightly contested. Although the party doesn’t release the number of votes each candidate received, the vote, which involved four candidates, went down to the wire with three ballots.
“It was a long night,” she says.
The media attention around her fight with the PSC likely helped her, she says.
“The riding obviously has a lot of public servants living in it, so a very large number of people reached out to me directly to express their unhappiness with how I’d been treated,” she says.
Party members may also have liked her family background. She is the daughter of Louise Arbour, the former Supreme Court of Canada justice and UN High Commissioner for Human Rights.
Now Taman finds herself up against someone she concedes is a formidable opponent: Liberal incumbent Mauril Bélanger, who has held the seat for 20 years. The riding has a solid history of Liberal dominance, both federally and provincially.
Nevertheless, Taman says she’s excited and hopeful about taking on Bélanger.
“The party has a huge amount of momentum right now,” she says. “I feel that I have momentum as a candidate, and based on how things went [on nomination night], I feel really confident, and I look forward to engaging with him and seeing where that goes.
“I appreciate it’s an uphill battle and I’m facing an adversary who’s experienced, but I’m attracted to what the NDP’s trying to do and I think I’m going to do a good job in pitching it to constituents.”
Update Sept. 18: To clarify Taman's judicial review is regarding the Public Service Commission's refusal to allow her to run for office and that she was terminated by her employer, the Public Prosecution Service of Canada.
Innocent bystander dies in targeted shooting in Abbotsford, Canadian Press
You’ve likely asked yourself this question out of curiosity, or perhaps in a moment of mild regret: If I was not a lawyer, what would I be?
|(Source: Robert Half)|
Fifteen per cent of lawyers surveyed said they would have chosen business management or marketing careers in lieu of practising law. Careers in academia and STEM (science, technology, engineering, and math) ranked second to business, with each of those categories getting 13 per cent favorability.
“Even if you’re content with your job, it’s important to periodically examine your career goals to assess whether your priorities or interests have changed,” said Charles Volkert, executive director of Robert Half Legal.
“Lawyers considering second careers may find that the skills, knowledge and experience they possess are a natural fit with a variety of roles outside of the legal field.”
In response to the survey, 10 per cent of lawyers said they’d have become doctors or work in the medical field, while eight per cent said they would have chosen finance, and five per cent would have gone into journalism. Another five per cent said a career in public service would have been their alternative.
For six per cent of respondents, a career outside of law was entirely unimaginable; their response was, “Nothing other than an attorney.”
The biggest group of respondents, 17 per cent, had no clue what they would have done if they didn’t go to law school.
Those last two groups are likely made up of those who have always dreamed of becoming lawyers, says Gene Roberts, division director at Robert Half Legal in Toronto.
“It’s like your dream was to become an astronaut, you became an astronaut, and someone asked you, ‘What would you be if you weren’t an astronaut?’” says Roberts. “They wouldn’t know because all they thought about the entire time was, ‘I’m going to be an astronaut.’”
Ottawa criminal lawyer Michael Spratt isn’t surprised the top alternative careers lawyers revealed in the survey include sciences. Spratt himself chose the law over a career in palaeontology after completing his undergraduate degree in biology. He says he turned down four years on a submarine studying long-dead deep-sea Atlantic coral reefs to write factums instead.
“There is a lot in common between the scientific method and thinking and law,” he says, “except submarines are way cooler than factums.”
If he weren’t a busy criminal lawyer these days, Spratt says he would play for the Blue Jays.
“Or if you are talking about realistic alternative careers, I would give it all up to be a journalist or a back room political operative in a second,” he says.
Gilbertson Davis LLP civil litigator Lee Akazaki says he and a lot of lawyers come to the profession with backgrounds in business and academia. For his part, Akazaki says he would have become an anthropologist if he weren’t a lawyer.
“I like to study people,” he laughs.
Man charged in murder of Toronto teen in Jamaica, Canadian Press
Sentencing hearing to resume today in Via Rail terror plot case, Canadian Press
A rec hockey player in Ottawa has been granted a new trial after a judge was found to have erroneously applied speculative reasoning to her decision that convicted him of blindsiding another player.
|A rec hockey player in Ottawa has been granted a new trial after the judge was found to have erred in convicted him of blindsiding another player. (Photo: Shutterstock)|
At the centre of the determination of guilt at trial was whether an on-ice collision involving MacIsaac and another player was an unavoidable accident or a deliberate blindside hit.
On Monday, the Ontario Court of Appeal in R. v. MacIsaac allowed the appeal and ordered a new trial, saying MacIsaac did not have a fair trial because the judge “engaged in impermissible speculative reasoning in reaching her verdict.”
On March 15, 2012, MacIsaac’s team the Tiger-Cats was playing in a senior no-contact men’s hockey league in Ottawa against the Pirates. During the last 47 seconds of the game, with the Pirates up by two goals, MacIsaac collided with Pirate Drew Casterton.
Casterton was knocked to the ice on his back and suffered lacerations to his face, a concussion, and the loos of two front teeth. MacIsaac was charged with one count of aggravated assault.
The court heard from 11 witnesses as well as a referee and various members of both teams. The Crown held that MacIsaac deliberately delivered a blindside hit to the left side of Casterton’s head.
The goalie on the Pirate’s team testified he saw MacIsaac leap off the ice, raise his arms, and hit Casterton in his shoulder and head area. He said MacIsaac’s arms hit Casterton’s head and that his facemask may have hit Casterton’s face.
The defence’s position was that the incident was an accidental, unavoidable, face-to-face collision.
At trial, Ontario Court Justice Diane Lahaie said most the witnesses showed “a clear bias depending on which of the two hockey teams he belonged to.”
She found the referee, was the sole “completely neutral” witness and that his evidence was credible and reliable. While his account of MacIsaac’s and Casterton’s positions on the ice — with the pair heading towards the puck behind the net — differed from that of the other witnesses, she accepted the entirety of his evidence aside from his testimony regarding a tripping incident earlier on the same play.
Lahaie also accepted all of Casterton’s testimony. The injuries to the left side of his face were consistent with his testimony about where he was looking and supported the conclusion that this was not a “face to face ‘head on’ collision.”
Lahaie rejected the evidence of one of MacIsaac’s teammates. She was “not prepared to find beyond a reasonable doubt” that the teammate had been on the ice at the time of the incident because it was “not logical” for three Tiger-Cats defencemen to be on the ice with the team down by two points and with so little time left in the game.
“Mr. MacIsaac intended to deliver a blindside hit to Mr. Casterton’s head and knew of the risks associated with head shots. He delivered it anyway as his frustration and desire for revenge took over,” she said.
She rejected MacIsaac’s claims that he left his usual position as a defenceman in an effort to steal the puck from Casterton and score a goal, that Casterton made an unpredictable turn rendering a collision unavoidable, and that MacIsaac did not have sufficient control over his speed to avoid hitting Casterton.
On the issue of consent, Lahaie found the hit amounted to a marked departure from the conduct expected in a no-contact hockey league that “consent to such conduct cannot be given.” As for mens rea, she held that MacIsaac foresaw the risk that his actions would cause serious bodily harm, but nonetheless chose to take that risk.
In a case where the circumstances are not proven or the inferences are not reasonable, or both, the factual inference drawn would be described as “speculative” or “unsupported” and if material to the outcome would not withstand appeal, says Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP.
“The criminal standard was being applied in this case. Perhaps an inference that is more of a stretch might be accepted in a civil context but you couldn’t do it in a criminal context where you might be putting someone in jail,” says Virc.
MacIsaac’s lawyers said Lahaie misapplied the law of consent and failed to consider whether MacIsaac had an honest but mistaken belief in consent.
He thought players in the league consented to any type of bodily contact that was foreseeable in a game, including deliberate blindside checks. The fact defence counsel did not raise the issue did not relieve the trial judge of her obligation to turn her mind to the defence and whether it was applicable in the circumstances.
The appeal court considered whether the trial judge engaged in impermissible speculation and, did she reverse the onus of proof? It also considered whether Lahaie erred in failing to consider the defence of “honest but mistaken belief in consent?”
Writing for the Court of Appeal, Justice C. William Hourigan wrote: “I agree with the submission of the appellant that the trial judge engaged in impermissible speculative reasoning in rejecting the evidence of the defence witnesses. This impaired the appellant’s right to a fair trial. On this basis, I would order a new trial. It is unnecessary, therefore, to consider the other issues raised by the appellant.”
Two teens charged after woman stabbed in Halifax, Canadian Press
With a big focus on the Ashley Madison hack, law firms are showing increased anxiety around external threats to their computer systems, a new report has found.
|Perceived greatest security threats (Source: Digital Defense)|
“I think they’re very applicable to the Canadian market as well,” says Meg Grant, a vice president of Digital Defense, of the study’s findings. Her company provides businesses with security software and consulting services.
According to the report, external threats such as hackers have replaced malware as the biggest perceived security threat. As for law firms’ top information security concerns, they range from employee negligence to phishing attacks and viruses.
Despite the concerns, the study found 65 per cent of the law firms that participated have no staff devoted to information security, with 31 per cent of them reporting budgets for the issue in the range of $10,000 to $50,000. The study covered a range of law firm sizes with 36 per cent of them employing less than 150 people.
In terms of law firms’ actions to deal with security threats, the study noted a couple of areas of concern. The biggest is around vendor management, in particular the lack of an evaluation process. According to the study, 63 per cent of respondents don’t use a vendor evaluation process.
|The most concerning threats including the top three: 1. employee negligence, 2. phishing/sishing, and 3. virus, worm, and malware threats. (Source: Digital Defense)|
“I would say that would be something that firms would really want to evaluate,” she adds, citing the need to ensure vendors meet criteria around issues such as access to law firms’ networks and information.
When it comes to firms’ responses to security threats, the most common one is information security training for employees followed by encryption and intrusion detection.
“That’s a positive trend because that’s a big target for hackers,” says Grant of the vulnerabilities around employees.
Firms commonly conduct such training once a year or when hiring new employees. A further 11 per cent of respondents have no training programs around information security.
While the Ashley Madison hack is the big issue of the day, of course, Canadian law firms have suffered significant breaches in the past. In April 2011, hackers attempting to access sensitive documents targeted four Canadian law firms by posing as partners who were working on an acquisition of a Chinese company.
Overall, Grant says she has seen some improvements in law firms’ responses to the issue but notes what’s key is dealing with the issue on a regular basis.
“You have to have a program in place,” she says.
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