Legal Feeds Blog
- Federal government retains exclusive control over radio-communications
The federal government — and only the federal government — may approve or reject the location of a cellphone antenna, regardless of health concerns or any other issues that may be within the purview of provincial or municipal governments.
|Patrice Gladu says his client thought it had a good chance of opening a new avenue to involve the municipalities that are on the front lines.|
The appeal stems from a construction delay. Rogers Communications had been granted approval to build a cellphone antenna at a particular location in Châteauguay, south of Montreal. Citizens mobilized against the project, leading the municipal government to issue a “notice of reserve” that would forestall any construction for two years.
The city conducted public consultations and offered an alternative location, but Rogers rejected that site as inadequate. Then, a few days before the reserve notice was set to expire, the city extended the delay for another two years — prompting Rogers to launch its action.
The city argued successfully on appeal that it had authority to block construction of the antenna, given the concerns of nearby residents that the land was being misused and that their health would be affected — issues that falls under municipal and provincial mandate.
Today, however, in a unanimous decision written by justices Richard Wagner and Suzanne Côté, the SCC has overturned the appeal court’s decision, taking a hard line on constitutional divisions of power.
As the decision states: “Even if this measure addressed health concerns raised by certain residents, the fact remains that it would constitute a usurpation of the federal power over radiocommunication. . . . A finding that the siting of radiocommunication infrastructure has a double aspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the Privy Council in In re Regulation and Control of Radio Communication in Canada . . .”
The court found that Rogers was bound by a federally imposed obligation to ensure adequate cellphone coverage in the area, and that allowing cities to reject the location of cellphone infrastructure would make it impossible for these companies to carry out their obligations.
David Watt, senior vice president of regulatory affairs at Rogers, says the ruling is a win for Canadians who expect good cellphone service and that it’s important to have a fair and transparent process to work with communities across the country.
In an e-mail to Legal Feeds, he says: “We appreciate today’s decision and will always respect the communities we invest and operate in, meeting and beating health and environmental standards because we work here, live here and raise our kids here too.”
For Patrice Gladu, the lawyer at Dunton Rainville who represented Châteauguay, the decision is a disappointing loss for his client.
“We thought that we had a good chance of opening a new avenue to involve the municipalities that are on the front lines in the decision-making for planning of the land,” he says, “but we clearly understand that the ruling today of the Supreme Court says that municipalities do not have any kind of say over determination of the site. It’s up to the company and minister of industry to decide where an antenna is going to be built.”
Gladu, however, notes that the court does cite the possibility of a compromise, noting that municipalities — while lacking the authority to reject a specific site — may use their powers to expropriate land as a way of offering an alternative. He says his client is now open to that possibility.
Calgary police officers charged in anti-corruption investigation, Canadian Press
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Quebec Superior Court Justice Michel Girouard is not off the hook just yet despite the Canadian Judicial Council’s decision not to recommend his removal from the bench due lack of evidence that he purchased drugs while working as a lawyer.
In an unprecedented move, the federal and Quebec justice ministers have jointly asked the Canadian Judicial Council to open a new inquiry Girouard’s conduct. This time, Jody Wilson-Raybould and Stéphanie Vallée are asking that Girouard be investigated for his conduct before the committee that was tasked with investigating the drug allegations against him.
Despite finding there wasn’t enough evidence to prove Girouard purchased drugs while he was a lawyer, the inquiry committee recommended that the CJC remove him from the bench because the majority of the committee believed the judge lied to them during the inquiry.
In a press release yesterday, the ministers said:
Given the important purpose of the judicial discipline process, the critical role of integrity in ensuring public confidence in the judiciary, and the need to ensure fairness to Justice Girouard, the Ministers agree that the best course of action is to jointly request, pursuant to s. 63(1) of the Judges Act, that an inquiry be held into the findings of the majority of the Inquiry Committee that prompted it to recommend his removal."
Meanwhile, Quebec’s Superior Court announced Girouard will be relieved of his regular responsibilities and administrative duties as co-ordinating judge for the judicial districts of Rouyn-Noranda and Témiscamingue while the new inquiry is underway.
The CJC decided in April not to recommend Girouard’s removal because the credibility and integrity issue was separate from the reasons for the inquiry, which were the allegations of drug purchase.
Despite the majority of the committee’s assurance that Girouard was given chances to respond to the inconsistencies in his testimony, the CJC said he was not informed that “the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.”
“Because the judge was entitled to this kind of notice and did not get it, the Council does not know whether the majority’s concerns would have been resolved had it received an informed response to them from the judge,” said the CJC.
Ethics and professionalism lawyer Gavin MacKenzie says he’s never seen anything like this request being made by the ministers. But although “it’s a very unusual case,” MaKenzie says the ministers’ request is understandable.
“It’s not a case of double jeopardy,” he says. “The reaction of some seeing what has occurred is that the judge has been vindicated by the recommendation of the Canadian Judicial Council, but I can see the sense and the fairness of the ministers’ actions in requesting a new hearing in these circumstances.
“There’s a potentially legitimate concern that’s expressed in the majority reasons of the inquiry panel,” adds MacKenzie. “And it’s equally valid to draw the conclusion that the judge has not had a fair opportunity to respond to those allegations.”
Due to the passage of time, the inquiry committee could not prove allegations that Girouard purchased drugs from a drug trafficker in the ’80s and early ’90s. A drug trafficker, who later became a police informant, told authorities he sold Girouard a total of one kilogram of cocaine with an approximate value of between $90,000 and $100,000.
Another former drug dealer, Yvon Lamontagne, also told police Girouard was his client as early as 2010, and he’s sold cocaine to him just days before Girouard’s appointment to the Superior Court bench in September of that year.
At Lamontagne’s movie rental store, police found surveillance video that showed an exchange between Girouard and Lamontagne. While the duo’s interaction seemed “suspicious,” the inquiry committee was not convinced the video, which had no sound, is conclusive evidence of a drug transaction.
But in its November 2015 report to the CJC, the majority of the inquiry committee, including Federal Court Chief Justice Paul Crampton, expressed “deep and serious concerns” about Girouard’s credibility, and therefore integrity, throughout the process.
“In short, on the basis of all the evidence submitted to the Committee to date, and subject to our comments below about the possibility of bringing a further count, we cannot, with great regret, accept Justice Girouard’s version of the facts,” the majority of the inquiry committee wrote regarding what happened in the video between Girouard and Lamontagne.
“Although this implies nothing about the nature of the object that was exchanged, we wish to express our deep and serious concerns about Justice Girouard’s credibility during the inquiry and, consequently, about his integrity. In our opinion, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth,” they said.
In recommending Girouard’s removal, the majority of the inquiry committee said his conduct fell below the standards expected from members of the judiciary.
“He did not set an example of integrity. Instead, he lacked integrity. By acting in this manner, he placed himself in a position incompatible with the due execution of the office of judge, which amounts to misconduct under paragraph 65(2)(d) of the Judges Act,” the two committee members said.
But the dissenting member of the committee, Justice Richard Chartier, said the inconsistencies in the judge’s statements didn’t rise to the level of concrete doubt about this credibility. He also found it would be inappropriate to recommend Girouard’s removal based on conduct that wasn’t the basis of the inquiry, a position the CJC, too, later accepted.
Update June 22: The Canadian Judicial Council announced on June 22 that at the request of the justice ministers it will convene an inquiry into the conduct of Justice Michel Girouard. In a press release, the CJC noted, the Judges Act requires that it proceed with an inquiry when requested by the Minister of Justice of Canada or by the attorney general of a province.
A University of Saskatchewan law student is hoping to use her new position as Miss Universe Canada to elevate the discussion around awareness and understanding of indigenous culture.
|Siera Bearchell is a second-year law student at the University of Saskatchewan.|
“Students aren’t taught a lot about indigenous culture at school and I’d like to see that change. I took an indigenous law class and I think more needs to be done in terms of exposing students to that area of the law,” she says.
Bearchell, who is a past recipient of the Helen Bassett Commemorative Student Award that assists Aboriginal women in post-secondary education, just finished her second year of law school and one day hopes to use her law degree to further her interests in business.
An entrepreneur, Bearchell has her own brand of clothing — Watered Down Apparel, which helps provide clean drinking water. Every item sold provides 30 days of clean drinking water for people in developing countries.
She has worked with charities such as Free The Children, the Canadian Red Cross and SOS Children’s Villages. She was inspired to start her business after a trip to Kenya to build a school with Free The Children.
“My family lost our home in a house fire in 2009 and it was a very difficult time but it changed my perspective on things and I realized the important things in life are family and friends. It led me to volunteer with the Red Cross,” she says.
Bearchell says she also wants to use her platform to break down stereotypes about pageant participants. She was first runner up at Miss Universe Canada in 2013, and first runner up at Miss Teen World in 2009 — her first pageant.
“It’s a great opportunity to have experiences and learn leadership skills one might not otherwise have,” she says.
While she worked last summer at Robertson Stromberg LLP in Saskatoon on family and criminal law matters, Bearchell says in the future she would like to try and marry her law degree with a business opportunity.
She will be travelling to Nicaragua in July to volunteer with Operation Smile.
An Ottawa man who battled two of his former law firms in court is celebrating the decision by the Ontario Court of Appeal to have his fee agreements with the firms reassessed.
The ruling in Clatney v. Quinn Thiele Mineault Grodzki LLP stemmed from the settlement of a personal injury claim that Mark Clatney of Ottawa had reached in July 2013 for $800,000.
Clatney had been seriously injured in a crash in March 2008, and pursued a personal injury claim with Bertschi Orth Solicitors and Barristers, before switching to Quinn Thiele Moneault Grodzki LLP.
Justice Gloria Epstein said:
At the heart of the appeal lies the importance of public confidence in the administration of justice and, in that context, the court’s supervisory role over the appropriate compensation for legal services.”
Bertschi Orth handed Clatney a bill of more than $117,000 for its work on the claim, and Quinn Thiele initially told Clatney it was owed more than $305,000.
According to the ruling, Clatney asked for a release of $50,000 from his settlement, but ran into problems after trying to get $50,000 released, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.
“He noted that his acceptance came in the light of Quinn Thiele’s confirmation that the $50,000 could not be released as a result of the Charging Order and that a failure to accept the $210,000 offer would lead to an assessment hearing with consequent costs and delay,” said the ruling.
Epstein said Clatney was “vulnerable” when he entered into the fee agreements with the firms, and outlined other issues Clatney was facing.
“He was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling. “He terminated his retainer with Bertschi Orth and, when it came to resolving the firms’ fees and disbursements, the appellant expressed his frustration with Quinn Thiele. Finally, at the time the Fee Agreements were entered into, detailed accounts had not been rendered by Quinn Thiele.”
Epstein also noted Quinn Thiele “misled the appellant by providing erroneous legal advice” and “exerted pressure on the appellant to settle.”
“In these circumstances . . . the protection of the appellant’s interests and the public’s confidence in the administration of justice demand that the Fee Agreements be reopened and an assessment be ordered,” said the ruling.
Paul Auerbach, a partner with McNally Gervan LLP who acted for Clatney in the Court of Appeal process, told Legal Feeds he is “pleased” with the ruling.
“The decision reflects a very thorough analysis of the circumstances leading up to the consent order,” he said. “The decision is a clear reaffirmation of the role of the assessment process in maintaining public confidence in lawyers and the legal profession.
“It also makes clear that agreements between lawyers and their clients will be reviewed by the courts where the circumstances require it.”
The appeal court directed that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to Clatney for costs of the initial application and $15,000 for the appeal.
Clatney — a corporate account executive who lost in job in 2010 — said “for the past eight years I have faced one of the most difficult experiences of my life.”
“We are gratified by the Court of Appeal’s decision and the assessment process can now get underway. This is all I ever wanted,” he said, in a news release.
Darryl Singer, a litigator with Singer Barristers, who was not involved in the case, said: “It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”
William Hunter, who represented Quinn Thiele, did not have any comment.
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As Pride month kicks off in many parts of the country, Borden Ladner Gervais LLP unveiled a new policy to accommodate transgender employees.
|Laleh Moshiri says BLG wants to ‘create an environment of true inclusion.’|
The firm previously had other policies, such as one on anti-harassment, that refer to gender identity and gender expression, but did not have any stand-alone policies dealing exclusively with transgender issues, says Laleh Moshiri, BLG’s national director of diversity and inclusion.
“We wanted to create an environment of true inclusion,” she says. “We thought there were enough unique issues that this merited a stand-alone policy.”
The new policy, which rolled out mid-May, provides guidelines to employees and management as to how they can support and respect transgender colleagues. The guidelines include instructions on what to do when there is an employee who wants to transition and how to support that individual.
In addition, the policy deals with how to accommodate new applicants who may be transgender. It recognizes that each individual’s needs are different and that their privacy should be respected, says Moshiri.
The policy makes it clear as well that transgender employees are free to use whichever washroom corresponds to their gender identity or expression.
“We wanted to make that known to everybody else at the firm as well,” says Moshiri.
She says the timing was right for BLG to implement this policy as trans issues have been in the news a lot recently.
In May, the federal government introduced bill C-16, which would assert human rights for transgender people.
Debates have also been raging in the United States surrounding an ordinance, passed by the city of Charlotte, N.C., that would ensure a transgender person’s right to use the bathroom of their choice. The ordinance was struck down by the state legislature, which is now in a legal battle with the federal government.
“Trans issues have been receiving a lot of attention of late – whether it is stories of high profile transitions, Netflix shows, or debates around washroom usage,” she says.
“As we build a diverse and inclusive workplace at BLG, we thought it was important to develop a plan for supporting and accommodating trans individuals.”
The company has also installed single-access washrooms in its offices across the country in order to better accommodate transgender people. The signs on all the washrooms have been changed to indicate they are “all-gender restrooms.”
Moshiri says the company has not had someone publicly transition since the guidelines have been introduced, but when someone comes forward, the company will be ready.
“Part of this is we really wanted to have thought about all these issues in advance so that when we’re actually faced with them, we’re not reacting,” she says. “It was important to give it all thought.”
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