Legal Feeds Blog
You don’t want to mess with a lawyer’s dog, at least not John Cram’s dog Cougie.
Cram, a former lawyer living in Nova Scotia, has launched “a blitzkrieg of litigation” against a local vet and his veterinary association after the vet prescribed painkillers to Cougie without first examining the dog, according to the recent decision from the Nova Scotia Court of Appeal.
The decision says Cram had left Cougie, who is, “by dogs’ standards, is a senior citizen,” with a caregiver while he went on a trip. Upon noticing Cougie was unwell, the caregiver called Dr. Michael Howlett, who prescribed the painkillers, according to the ruling.
Upon his return, Cram complained to Nova Scotia Veterinary Medical Association about the prescription, which he said preceded an evaluation of the pooch. When the association dismissed the complaint, the former lawyer applied for a judicial review.
He then appealed the decision of a case management judge to the court of appeal after taking issue with the dates chosen for the judicial review hearing.
“In reality, this vet’s attempts to help Cougie have turned into a litigation battlefield, pockmarked with motions, civil actions, and private prosecutions too numerous to count,” wrote Nova Scotia Court of Appeal Justice Edward Scanlan, who dismissed Cram’s appeal of the case management judge.
“This Court will not interfere with something as basic as the Supreme Court setting hearing dates. The setting of those dates in no way impacts the merit of the complaints or the review. Scheduling, as I noted above, is an essential aspect of the Supreme Court’s inherent and statutory authority,” Scanlan added.
“The fact that there has been no substantive disposition by the lower court leads me to conclude that Mr. Cram has simply seized upon the fact that Justice [Arthur] Pickup did something, anything, as a basis for yet another legal step,” said the ruling.
Cram tells Legal Feeds he will be seeking leave to appeal the decision at the Supreme Court of Canada. He is basing it on the assertion the court system in Nova Scotia is biased against him because of his 1994 conviction for contempt of court.
A note on the web site of the Law Society of British Columbia, of which Cram was a member, says he had acted in an “intemperate and disrespectful” manner toward a presiding judge at the time.
Two decades later, “The entire Nova Scotia court is institutionally biased against me because of that and they’re being vindictive,” says Cram, adding there have been numerous examples of this bias.
Cram says he is also appealing to the SCC on the basis that opposing counsel in this case is married to a judge in Nova Scotia, which he says led to partial treatment in his case. According to Cram, part of the prejudice against him within the courts is also due to the fact that he is not a Nova Scotia native.
Cougie is still alive, although not completely recovered, according to Cram, who says the dog had been suffering from an infection when she was prescribed the painkillers without assessment.
“If you put it in human terms, imagine you’re sick and your doctor, without even seeing you or without even talking to you on the phone, but just using the receptionist, prescribed some painkillers for you,” he says.
Cram believes porcupine quills had gotten under the dog’s skin and caused the infection. No vet in his area considered this might be the case although the area is thought to be “the porcupine capital of the world,” says Cram.
Marjorie Hickey, counsel for the Nova Scotia Veterinary Medical Association, says Cram has chosen to bring many motions in this matter.
“The motions that he brought to date have really been without foundation, so we certainly agree with the Court of Appeal decision.”
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A former Staples Canada saleswoman who rejected her employer’s severance package was awarded six months compensation in lieu of notice in a wrongful dismissal action against the retailer.
|Employment lawyer David Ertl says he is recommending summary judgment with clients more often.|
In Summerfield v. Staples Canada Inc., Michelle Summerfield brought a summary judgment motion against Staples after turning down a severance package offered to her in November 2015. She claimed she ought to have received between six and nine months’ compensation in lieu of notice.
On May 30, Justice Paul Perell awarded her six months salary, or $34,171.
Summerfield’s lawyer David Ertl of Ertl Lilly LLP says he proposed the summary judgment motion when they commenced litigation.
“For cases that are streamlined and there’s no disagreement as to the real Bardal factors, it works well and you can probably get to a motion for summary judgment date somewhere between six and eight months post filing the claim,” he says. “We’re starting to use this more and more with clients.”
Ertl said it was the same strategy he used in Drysdale v. Panasonic Canada Inc. in which an employer argued Drysdale, a warehouse worker, was not management and therefore was entitled to lesser overall severance. The court awarded him 22 months’ notice.
In the last 18 months, Ertl says he has found employers are “taking a more hardline stance” at the early stages, and fewer matters are settling on the basis of a demand letter.
“Employers are saying, ‘If you want to squeeze more money out of us you’re going to have to claim.’ Maybe they are putting a line in the sand or waiting to see if the employee mitigates,” says Ertl. “Keep in mind it’s not the norm that these files get adjudicated. Less than one per cent of wrongful dismissal matters ever go to some kind of adjudication. This is a case where the employer took issue with the employee’s mitigation efforts and wouldn’t let go.”
He says this case demonstrates that an employer can’t expect to win on the issue of mitigation by simply “nit-picking” the employee’s efforts.
“There was no way the employer was going to win on mitigation; I tend to put a great deal of work into helping my client mitigate,” he says. “The employer did argue at the motion that the notice period was three to five months and because of the failure to mitigate they took the position they owed her zero. So we were fighting for all of it.”
Summerfield’s annual salary including benefits was $83,901 ($6,991.83 a month) when she was terminated without cause after almost five years on the job as an enterprise account manager — a sales role that required her to sell office supplies and furniture to multi-national companies. She was not in a managerial position.
When she was let go in November 2015, Summerfield was 39 years old and had no written employment agreement. She was offered a severance package, the terms of which were not disclosed to the court, and which she rejected.
Instead, she took the five weeks of termination pay required under the Employment Standards Act, and five weeks of benefits, and started to look for a job.
Since November, Summerfield tried to find employment by networking, speaking to recruiters, and applying for about 25 jobs — and getting several interviews — up to March 30, but she remained unemployed.
As Justice Paul Perell pointed out: “. . . Ms. Summerfield made an exemplary effort to mitigate. She started almost immediately to search for a new job and she assiduously continued with that effort in an organized and diligent way. Staples failed to meet the onus of proving a failure to mitigate.”
The only issue in the case was the length of the reasonable notice period.
“The parties agreed on the general principles but disagreed on their application to the circumstances of the immediate case although, even here, the gap between the parties was only one month. Be that as it may, my own analysis of the various factors and Ms. Summerfield’s particular circumstances is that the appropriate reasonable notice period is six months and, as noted above, as a factual matter, there has been no failure to mitigate,” said Perell.
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A new law firm study says it’s likely Canada will enact laws to combat genetic discrimination. Genetic discrimination is an issue that’s increasingly come to public attention, after huge changes in medical practices and technology.
|A new report from BLG says legislation on genetic discrimination is ‘likely.’|
“The tremendous and increasing power of research tools related to the human genome are increasing the potential for genetic information related to individuals to be deployed for diagnostic and therapeutic purposes,” says Graham, the head of BLG’s national life sciences group.
“[T]here is a concern that science, which leads to the generation of this additional personal information, is not adequately protected in existing laws and could be used to prejudice individuals in the workplace and insurance environments without adequate controls or protections being established.”
The report covers areas including outsourcing, procurement and cybersecurity, cyber risk management, and the Canadian Competition Bureau’s new update of the Intellectual Property Enforcement Guidelines.
Genetic testing — which the report describes as “the analysis of a person’s chromosomes, genes, or gene products (proteins) to identify the presence of specific traits” — is accessible to Canadians interested in learning more about their predisposition to certain health issues, or for diagnosis.
“Although the long-term ethical and legal consequences of genetic testing for employment matters, insurance contracts, and preventive medicine and treatment are not yet fully known, cases of alleged genetic discrimination have been emerging in different parts of the world, prompting calls from concerned citizens for government action,” says. the report.
It also notes the federal government’s “protection against genetic discrimination act” died last year, as a result of the federal election being called.
The report says a bill that includes criminal sanctions for discrimination was passed in the Senate to prevent genetic discrimination and has gone to the House of Commons.
“At this point in time, the timing of federal legislative changes is uncertain,” says Graham. “If the current bill is adopted in its current form, it may not be necessary for parallel or complimentary provincial legislative changes.”
It’s important to note that new rules have effects for the insurance industry, which is usually governed by laws at the provincial level, states the report.
“Although provincial human rights codes may already provide some protection for individuals from genetic discrimination, they also include some exceptions that may allow automobile, life, accident or sickness or disability insurance providers to make distinctions based on an applicant’s age, sex, marital status, family status, or physical or mental disability,” says the report.
“A discriminatory practice in insurance may be justified on reasonable and bona fide grounds — in other words, if it is based on accepted and sound insurance practices and if no practical nondiscriminatory alternative exists.”
The report says insurance providers do not now require genetic testing to provide insurance but do ask people who want insurance if they’ve been tested in the past, and, if so, to disclose the results.
“The insurance industry has expressed concern that insured persons who learn, after taking a genetic test, that they are at high risk for a genetic disease could knowingly take out policies for large amounts of additional coverage without insurers being aware of any increased risk,” says the report.
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Lawyers and notaries scored a big victory for solicitor-client privilege today, as the Supreme Court of Canada ruled that legal professionals cannot be compelled by a provision in tax law to divulge their clients’ identities or any other privileged information.
|‘These are very strong rulings for the protection of solicitor-client privilege and for the legal profession,’ says Mahmud Jamal.|
Both cases centred on s. 232 of the Income Tax Act, which specifically excludes a lawyer’s accounting records from solicitor-client privilege.
In the case of lawyer Duncan Thompson, the Canada Revenue Agency had sent an order for various documents, including his accounts receivable. Thompson complied with parts of the order but refused to divulge the identity of his clients, arguing that to do so would be to violate their privilege.
The issue at stake in Thompson, then, was whether the identity of a lawyer’s clients fell under solicitor-client privilege. Here the Supreme Court is clear: there is no difference between information about a communication with the client and information about the status or identity of a client.
As the decision states: “This Court has rejected a category-based approach to solicitor-client privilege that distinguishes between a fact and a communication. In this case, absent proof to the contrary, all of the information sought is prima facie privileged.”
In Chambre des notaires, where notaries were similarly ordered to provide privileged tax documents, the court addressed the constitutional validity of the exclusion in the Income Tax Act, finding that it fails to meet the test of “absolute necessity” required to abrogate the fundamental principle of justice that is solicitor-client privilege.
“Section 231.2(1) . . . and s. 231.7 . . . are unconstitutional, and inapplicable to notaries and lawyers in their capacity as legal advisers. The exception for a lawyer’s accounting records set out in the definition of ‘solicitor-client privilege’ in s. 232(1) of the ITA is unconstitutional and invalid.”
Mahmud Jamal, the lawyer at Osler, Hoskin & Harcourt LLP who represented the Canadian Bar Association as an intervener, calls it a “very good day” for solicitor-client privilege and the law.
“These are very strong rulings for the protection of solicitor-client privilege and for the legal profession,” he says. “They affirm that solicitor-client privilege is constitutionally protected in Canada, regardless of the context.”
There had been some concern, he says, that the court might weaken privilege where taxation matters are concerned.
This would have led lawyers and notaries to become “informants or archives of information against the interests of their clients. . . . The court has all but shut the door on this possibility, though it will be left to Parliament to attempt to devise a new, constitutional scheme if it chooses to do so.”
Indeed, the court suggests that the constitutional defects around the CRA’s orders “could easily be mitigated and remedied by way of measures that are compatible with the state’s obligations relating to the protection of professional secrecy.”
A process of judicial review, for instance, could allow the court to determine the validity of a claim of privilege around taxation documents, although it’s not immediately clear how to avoid the Catch-22 scenario that would have a lawyer disclose privileged information (such as identity) in order to assert the privilege.
“I think what the court contemplates is a lawyer advancing the client’s privilege claim without identifying the name of the client,” says Jamal.
“This can be done by the lawyers providing sufficient information to allow for the claim of privilege to be evaluated by the court, or perhaps by allowing the court to review the documents in camera. There are a number of options.”
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All photos: Alex Robinson
Former law clerks descended on Osgoode Hall in Toronto Wednesday evening to reminisce about their time at the Court of Appeal and reconnect with old friends.
“We often speak of the Court of Appeal family,” said Chief Justice George Strathy.
“We work in an intense, fast-paced environment and become very close to the clerks. So this really does feel like a bit of a family reunion.”
Dozens of former law clerks attended the event and were treated to a musical performance by judges, singing popular songs with altered law-themed lyrics.
The Court of Appeal brings in 17 new clerks every year to work closely with judges, which Strathy says is an experience that makes them better lawyers in whatever path they choose to take.
“I asked the law clerks to take the message back to their law firms to encourage young lawyers to entire the clerking program and to hire young law clerks, because they get it,” Strathy says.
Some former clerks came from as far away as France to be at the event at Osgoode Hall.
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