The Lawyers Weekly - February 13, 2015

Transcription

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Vol. 34, No. 37
lawyersweekly.ca
february 13, 2015
A key court victory for labour
in battle over the right to strike
Supreme Court’s Saskatchewan ruling puts federal back-to-work laws in jeopardy
Court says no
to roadblock for
TWU graduates
Cristin Schmitz
Ottawa
Ahead, Page 23
Next move, Page 2
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BUSINESS & CAREERS
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Looking after It is you,
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Effectively resolving
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Examining the duty to
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Working on change if
you’re a difficult person
PAGE 14
PAGE 20
PAGE
10
STB_LW_basebar_03_12v2_STG
Peter Barnacle, left, and Craig Bavis, two of the lawyers who acted for the winning Saskatchewan Federation
of Labour in a Supreme Court of Canada case over the right to strike, speak at a press conference in Regina on
January 30. Chris Graham for The Lawyers Weekly
constitutionally
defective
because it does not impinge on
the right to strike as little as
reasonably
possible.
For
example, it fails to give unions
recourse to independent review,
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independent and effective dispute resolution process to
resolve collective bargaining
impasses, such as arbitration.
Counsel say the court’s invali-
The Supreme Court’s historic
recognition of the right to strike
as an “indispensable component” of the Charter’s protection
of collective bargaining gives a
major boost to current court
challenges to federal anti-strike
laws, union counsel say.
Justice Rosalie Abella’s 5-2
ruling Jan. 30, in Saskatchewan
Federation of Labour v. Saskatchewan [2015] S.C.J. No. 4,
expands the protection offered
by the Charter’s s. 2(d) guarantee of freedom of association.
The court’s majority struck
down a 2008 Saskatchewan law
on essential services, but suspended the declaration of
invalidity for a year to give the
province time to legislate, if it
wishes to do so.
Saskatchewan’s Public Service
Essential Services Act (PSESA),
which was more or less transplanted to the federal sphere by
the federal government in 2013,
empowers the province to unilaterally declare its employees
to be “essential” and thus ban
work stoppages.
The majority found the act
To subscribe to The Lawyers Weekly,
visit www.lawyersweekly.ca/subscribe
such as by a labour board, of
government decisions defining
essential services and who performs them. It also fails to compensate for removing the right
to strike by offering unions an
Nova Scotia benchers are
expected to decide this month
whether to appeal a judgment
that overturns their decision to
bar future law graduates of
Trinity Western University
from the province’s bar admission program.
On Jan. 28, Nova Scotia
Supreme Court Justice Jamie
Campbell allowed TWU’s judicial review application seeking
to quash the decision of the
Nova Scotia Barristers’ Society
last year not to approve the nascent law school and its law
degree unless the evangelical
Christian university either
exempts law students from its
faith-based “community covenant” restricting sexual intimacy
to one man and one woman who
are married, or rewrites the
pledge so it does not discriminate against gays and lesbians.
The law society acted
unreasonably in interpreting its
mandate under the Legal Profession Act to “uphold and protect the public interest in the
practice of law,” Justice Campbell held in Trinity Western
University v. Nova Scotia Barristers’ Society [2015] N.S.J.
No. 32.
Cristin Schmitz
OTTAWA
2
• february 13 , 2015
THE LAWYERS WEEKLY
News
Contents
News
Key victory for labour in battle
over right to strike
1
Next move: Benchers pondering
appeal as focus shifting elsewhere
Benchers overstepped on Trinity
Western, court says
1
Supreme Court may rule on trial
fitness issue
3
Freedom of expression trumps
order, says court
3
B.C. court confirms heavy
manslaughter sentence
4
Capacity to instruct an issue with
older clients
9
Focus
ADR
Leveling world’s playing fields 10
The one chance to choose
arbitrator
11
Seven traits of highly effective
mediators
12
International arbitrations: short
and sweet
13
HEALTH LAW
Examining the duty to protect in
retirement homes
14
The push is on for more
disclosure
15
Business & Careers
What to do when you are the
problem
20
Overcoming the fear of starting
your own practice
22
21
19
16
12
4
CAREERS
CLASSIFIED ADS
DIGEST
LAWDITTIES
NAMES IN THE NEWS
Continued from page 1
“The NSBS has no authority
whatsoever to dictate directly
what a university does or does
not do. The legal authority of
the NSBS cannot [be] extended
to a university because it is
offended by those policies or
considers those policies to contravene Nova Scotia law that in
no way applies to [the university]. The extent to which NSBS
members or members of the
community are outraged or suffer minority stress because of
the law school’s policies does
not amount to a grant of jurisdiction over the university.”
Moreover, even if the law society’s authority to regulate lawyers and the practice of law in
Nova Scotia did extend that far,
Justice Campbell agreed with
TWU that the law society did
not properly consider TWU’s
Charter rights to freedom of
religion and freedom of conscience when the regulator
made its decision.
“The NSBS has characterized
TWU’s community covenant as
‘unlawful discrimination.’ It is
not unlawful,” the judge said.
“It may be offensive to many,
but it is not unlawful. TWU is
not the government. Like
churches and other private
institutions it does not have to
comply with the equality provisions of the Charter. It has not
been found to be in breach of
any human rights legislation
that applies to it.”
Justice Campbell added that
the Charter “is not a blueprint
for moral conformity. Its purpose is to protect the citizen
from the power of the state, not
to enforce compliance by citizens or private institutions
with the moral judgments of
the state.”
Justice Campbell said people
have the right to attend a pri-
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I think the [court’s] decision reflects what we
should all want in terms of having an open and
free and pluralistic society.
Earl Phillips
Trinity Western University
vate religious university that
imposes a religiously-based
code of conduct, “even if the
effect of that code is to exclude
others or offend others who will
not or cannot comply with the
code of conduct.
“Learning in an environment
with people who promise to
comply with the code is a religious practice and an expression of religious faith,” he wrote.
“There is nothing illegal or even
rogue about that. That is a
messy and uncomfortable fact
of life in a pluralistic society.
Requiring a person to give up
that right in order to get his or
her professional education recognized is an infringement of
religious freedom.”
On the other hand, refusing a
TWU law degree will not
address discrimination against
anyone in Nova Scotia, the
judge found.
“The NSBS is not the institu-
tional embodiment of equality
rights for LGBT people” and its
aim to pressure TWU to change
its policy on same-sex marriage
Ruby
did not justify, under s. 1 of the
Charter, the infringement on
TWU’s religious freedom, he
held. “It is hardly a pressing
objective for a representative of
the state to use the power of the
state to compel a legally functioning private institution in
another province to change a
legal policy in effect there because
it reflects a legally held moral
stand that offends the NSBS, its
members or the public.”
Nova Scotia benchers are
scheduled to consider the ruling, and a possible appeal, at
their Feb. 20 meeting.
“I’m not sure how enthusiastic
they would be about appealing,
but I don’t know,” said TWU’s
Nova Scotia counsel, Brian
Casey of Boyne Clarke in Halifax. “It’s a real long bow to suggest that somehow the Barristers’ Society in Nova Scotia can
regulate what a university does
in B.C.”
The regulator has declined to
comment on the judgment.
However, the nascent law
school’s executive director, Earl
Phillips, called the decision
“well-reasoned” and “an encouraging result” that should be
persuasive in Ontario’s Divisional Court and in B.C.
Supreme Court, where TWU is
seeking to overturn similar
provincial law society decisions.
“I think the [court’s] decision
reflects what we should all want
in terms of having an open and
free and pluralistic society,”
Phillips said.
However, Toronto lawyer
Clayton Ruby, who is challenging the now-rescinded 2013
decision of the B.C. government
to approve the Langley, B.C.based law school, does not find
the ruling persuasive.
“It has the very latest thinking
on equality from 1930,” said
Ruby, of Ruby Shiller Chan
Hasan. “You are left wondering
how it is that going to law
school becomes a religious
experience merely because, in
[TWU’s] view, Jesus would
have wanted it to be that way.”
Ruby’s co-counsel, Angela
Chaisson, said the judge gave
primacy to religious rights over
the equality rights of gays and
lesbians.
“I question whether Justice
Campbell would have come to
the same result had the issue
been a covenant that prohibited
interracial couples, or interfaith couples,” she said.
Chaisson also disputed the
holding that the law society
acted outside its public interest
mandate.
february 13 , 2015 •
THE LAWYERS WEEKLY
3
News
Supreme Court may rule on trial fitness question
Michael Benedict
An Alberta case involving a
woman who strangled her
14-year-old daughter with a
scarf is headed for the Supreme
Court of Canada on the question of whether the mother
should have been granted a stay
on the grounds that she is terminally ill and unfit physically
to stand trial.
Last month, the Court of
Appeal of Alberta in a split decision determined that the trial
judge erred in granting Chechen
refugee Aset Magomadova a stay
on second-degree murder charges because her failing health
made a fair trial impossible.
Magomadova, who was convicted of manslaughter in 2010,
testified at her first trial that she
killed her daughter in selfdefence just before the troubled
14-year-old was to be sentenced
for assaulting a teacher. The
Crown, which had sought a
second-degree murder conviction against Magomadova, successfully appealed the verdict
and the suspended sentence that
had created a public uproar.
Magomadova was about to face
a new trial in April 2013 when
she obtained the stay. Calgary
criminal lawyer Alain Hepner
persuaded the trial judge that
his client’s terminal cancer rendered her unable to withstand a
five-week trial and that the narcotics she was taking for pain
management left her unable to
participate fully in the trial process, contrary to the “fundamental justice” provision under Section 7 of the Charter.
The Crown appealed the stay,
and the high court majority in
R v. Magomadova [2015] A.J.
No. 62 on Jan. 22 said the trial
The appeal court test is difficult to meet, but I
believe that we met it for all practical purposes.
Alain Hepner
Lawyer
judge had applied an improper
test. Meanwhile, dissenting
Justice Brian O’Ferrall argued
the test had, indeed, been properly exercised and that, in any
event, the appeal court should
not question the trial judge on
this matter.
breach on physical health
grounds, she must establish an
inability to “(i) understand the
nature or object of the proceedings and the possible consequences of the proceedings, or
(ii) adequately communicate
with counsel, or (iii) testify
Under the court’s test, it’s difficult to see how
the trial judge erred. Regardless of the test, this
accused would have met it.
Nader Hasan
Ruby Shiller Chan Hasan
“I will be relying on the dissent,” said Hepner, who has
represented
Magomadova
throughout her legal odyssey.
“The appeal court test is difficult
to meet, but I believe that we
met it for all practical purposes.”
In its decision, the first of its
kind at the appeals level to set
down such a test, the Alberta
high court said that for Magomadova to establish a fair-trial
when necessary,” or that the
trial itself would seriously
imperil her health.
In this case, the high court
went on to say that Magomadova
failed to provide medical evidence that “she could not sit for
even a few hours, or that her
ability to understand would be
affected simply because she was
lying on a gurney…or that her
medication regime could not be
Freedom of expression trumps order, court rules
Luis Millan
A former Canadian student activist best known for his role during
the 2012 Quebec student protests
has won an appeal reversing his
contempt of court conviction,
after the Quebec Court of Appeal
held that individuals have the
right to hold strong convictions
even in the face of a court order.
Gabriel Nadeau-Dubois, former
spokesman of the major student
organization CLASSE, was found
guilty three years ago of inciting
students during a television interview to strike and ignore a court
order that guaranteed access to
their classrooms during the student conflict in the spring of
2012, when thousands took to the
tailored to afford her periods of
relative clear-headedness during
the day.” It added that the trial
judge should have considered
accommodation measures such
as frequent trial breaks or Magomadova observing the proceedings electronically in comfort
streets to protest planned tuition
fee increases. His sentence of 120
hours community service was
thrown out by the appeal court.
“Now we have a ruling which
says that one of the things to be
considered when it comes to verbal
contempt of court is whether freedom of expression is threatened,
and it is particularly important in
matters where a person expresses
disagreement with a judgment,”
said Julius Grey, who represented
the Canadian Civil Liberties Association, an intervener in the case.
“That is a major achievement, and
extremely important.”
In Nadeau-Dubois c. Morasse
[2015] J.Q. no 158, the Quebec
Court of Appeal underlined the
exceptional nature of contempt of
court procedures, stressing that it
is a legal remedy that should be
used “sparingly.” In a case of civil
contempt, the appeal court reiterated that certain elements must
be established beyond a reasonable doubt: the terms of the order
must be clear and unambiguous;
proper notice must be given to
the contemnor of the terms of the
order; there must be clear proof
that the contemnor intentionally
committed an act prohibited by
the terms of the order; and mens
rea must be proven.
While the order was clear and
unambiguous, none of the other
elements were proven in NadeauDubois’ case. The appeal court
held that it was not proven, “let
Reversal, Page 5
from outside the courtroom.
The majority decision, penned
by Justice Myra Bielby and concurred with by Justice Paul Jeffrey, acknowledged that Magomadova might be able to satisfy
its provisions for a stay at her
retrial. But for now, it said:
“While the evidence of Ms.
Magomadova’s medical condition evokes sympathy, one must
focus on whether that evidence
is sufficient to have established
that her medical condition
made it impossible for her to be
fairly tried…Sympathy, as
understandable as it may be,
cannot fill gaps in meeting the
required legal standard.”
However, O’Ferrall countered: “The sufficiency of the
evidence of unfitness is an
assessment to be made by the
trial judge…I don’t believe this
court is in a position to secondguess that assessment.”
Describing his client’s worsening condition, Hepner said:
“How bad does it have to be?
How can I get effective instructions if she is hospital, barely
able to speak? Common sense
has to prevail.”
Meanwhile, Toronto criminal
lawyer Nader Hasan said he is
“surprised” by the majority decision. “Under the court’s test, it’s
difficult to see how the trial
judge erred,” said Hasan, of Ruby
Shiller Chan Hasan. “Regardless
of the test, this accused would
have met it.”
Lisa Silver of the University of
Calgary Faculty of Law
described the majority decision
as “odd” because it is seemingly
based on Criminal Code trial
fitness criteria which generally
relate to mental health, rather
than the physical health Charter
application made by Magomadova. “I agree with the dissent
that the trial judge did not apply
an improper test,” Silver said,
adding she hopes the Supreme
Court clarifies the decision
“because we do need a physical
test” for a stay.
However, there is a strong possibility that may not happen.
There are fears that Magomadova
will die before the case reaches
the Supreme Court bench.
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THE LAWYERS WEEKLY
News
Moves
■Former Alberta premier David
Hancock has joined Dentons
Canada as counsel working in
support of the firm’s Edmonton
and Calgary offices with a
practice focusing on corporate
and commercial law. From 1997
until his resignation in
September last year Hancock
served as an Alberta MLA, and
is a former corporate and
commercial solicitor.
■ Andrea Greenwood has joined
Vancouver law firm Branch
MacMaster as an associate
with a practice primarily in the
areas of class actions and
insurance litigation. Greenwood
was formerly with
Thorsteinssons LLP.
■ Business lawyer Ronald
Auclair has joined Montreal
law firm Dunton Rainville.
Auclair was formerly at
Fishman Flanz Meland Paquin.
■ Business law firm McCarthy
Tétrault has added 11 new
partners at three of its offices
in Canada: In Toronto, Lisa
Melanson (patent law), David
Tait (IP), Matthew Appleby
(corporate finance and
securities), Kate McNeillKeller (labour and
employment), Tristan
Musgrave (real estate and
business law), Adam Ship
(commercial litigation) and
Steven Tanner (patent law,
focusing on pharmaceuticals
and oil & gas); In Montreal,
Dominic Thérien (competition
law), Sean Griffin (commercial
litigation) and Marc-Alexandre
Hudon (aboriginal law,
commercial litigation); and in
Vancouver, Conrad Rego (real
estate and banking).
■ Catherine Doyle has joined the
Toronto office of Blake, Cassels
& Graydon as a partner in the
firm’s financial services and
infrastructure groups with a
practice focusing on project
finance and public-private
partnerships. Doyle was
previously at McMillan LLP.
Publisher
Ann McDonagh
Editor In Chief
Rob Kelly
Senior Editor
Matthew Grace, LL.B.
Focus Editor
Richard Skinulis
B.C. court confirms manslaughter sentence
Kim Arnott
British Columbia’s highest
court has dismissed an appeal
from a man convicted of manslaughter and sentenced to
three years in prison and three
years of probation by a judge
who rejected a joint sentencing
submission in his case.
Matthew John Anthony-Cook
had a history of mental illness
and substance abuse problems
when he became involved in an
altercation outside a Vancouver
drop-in facility in February 2013.
Anthony-Cook became angry
and difficult while at the centre,
and was asked to leave. Outside
the building, he was subsequently
approached, grabbed by the
shoulders and told to “smarten
up” by Michael Gregory, a regular
volunteer at the facility.
The confrontation resulted in
a shoving match, with AnthonyCook eventually hitting Gregory twice. The court found that
the first blow stunned Gregory,
while the second knocked him
out and caused him to fall backward and hit his head on the
pavement, resulting in a fatal
skull fracture.
In R. v. Anthony-Cook [2015]
B.C.J. No. 63, the court’s threejudge panel found the sentence
imposed by B.C. Supreme Court
Justice William Ehrcke was “fit
in the circumstances, notwithstanding the judge’s departure
from counsels’ joint sentencing
recommendation.”
In sentencing Anthony-Cook,
who pleaded guilty a week into
his trial, Justice Ehrcke rejected
the joint submission for 18
months of additional incarceration with no period of probation.
After reviewing similar cases,
he determined an appropriate
sentence range to be between
three and five years’ imprisonment, prior to credit for presentence custody.
“Any sentence less than three
I think that the
decision is problematic
because the Court of
Appeal hasn’t resolved
the outstanding issue
around what the test
is for departing from a
joint submission.
years’ imprisonment for this
offence and this offender would
be an unfit sentence, having
regard to the need for denunciation, deterrence, and protection of the public,” he found.
After crediting AnthonyCook’s pre-sentence custody
time of 366 days, the imposed
sentence became two years less
one day. The judge also imposed
a three-year period of probation.
While finding the judge’s sentence “not an insignificant
departure from the joint sentence recommendation,” Court
of Appeal Justice Nicole Garson
concluded that it “cannot be
said to be either unfit or contrary to the public interest such
that it would, if accepted bring
the administration of justice
into disrepute.”
However, one B.C. law professor said the finding fails to provide clarity to the province’s
lower court judges on the “open
question” of the appropriate
standard to use when considering joint recommendations.
“I think that the decision is
problematic because the Court
of Appeal hasn’t resolved the
outstanding issue around what
the test is for departing from a
joint submission,” said Micah
Rankin, assistant professor at
Thompson Rivers University.
In R. v. Roadhouse [2012]
B.C.J. 2558, Justice Catherine
Anne Ryan acknowledged a
possible divergence in judicial
rulings regarding the appropriate test.
She noted that several rulings
from the province’s highest
court have cited a standard
drawn from the Court of Appeal
for Ontario: “The submission
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Micah Rankin
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should be departed from only
where the trial judge considers
the joint submission to be contrary to the public interest and
a submission which, if accepted,
would bring the administration
of justice into disrepute.”
However, she also noted Court
of Appeal cases providing
authority for judges to depart
from submissions considered
“not fit” sentences.
In Roadhouse, Justice Ryan
took the position that it was
unnecessary to resolve the
question of the standard, as the
sentencing judge in that case
did not err in his application of
either standard.
In dismissing Anthony-Cook’s
appeal, Justice Garson echoed
that sentiment. She noted
agreement with the Crown’s
position that “the judge’s
explanation for his departure
from the joint submission satisfies either standard,” and added
“consequently, it is unnecessary
to resolve, on this appeal,
whether one or the other standard is appropriate.”
Rankin said clarity on the
issue of the standards would be
helpful, particularly for cases
that fall on the lower extreme of
sentence ranges.
“If you think about the least
culpable individual in a manslaughter case, this is probably
pretty close to it,” he said, noting the mitigating factors of
mental illness, possible provocation and limited blows
exchanged.
Despite the tragic outcome, he
argued that if the fall that
caused death hadn’t occurred,
the case would likely have
involved simple assault charges.
“This case was clearly a case
where (the joint submission)
was outside of the range, but
was it contrary to the public
interest and would it bring the
administration of justice into
disrepute? I’m not sure.”
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THE LAWYERS WEEKLY
5
News
Reversal: Quebec student leader’s conviction overturned
alone proved beyond any reasonable doubt,” that Nadeau-Dubois
knew about the injunction at the
time of the interview. The appeal
court noted that the injunction
was not served to him personally
and that he was not aware of its
contents or scope.
“Even if such knowledge had
been proved, the appellant should
nevertheless be acquitted because
it was not demonstrated that he
violated the order,” wrote Quebec
Court of Appeal Justice Jacques
Dufresne in a unanimous ruling.
The appeal court held that
Nadeau-Dubois neither encouraged civil disobedience nor
anarchy, but rather exercised his
right to freedom of expression by
publicly defending his controversial position. His “strong
encouragement” during the
interview to maintain pressure
tactics through picketing did not
constitute a violation of the
order, added Justice Dufresne.
“The right to inform as many
Roy
members of the public as possible
of one’s strongly held convictions
in a conflict falls within the scope
of freedom of expression as protected by the Canadian Charter of
Rights and Freedoms and the
(Quebec) Charter of human rights
and freedoms, as well as the
underlying right to information,”
said Justice Dufresne.
The appeal court decision is
reassuring because it makes a
clear distinction between
incitement to civil disobedience
of a court order and public disagreement with a court decision, said Pierre Trudel, a law
professor with the Public Law
Research Centre at the Université de Montréal. In order for
the courts to conclude that an
individual incited civil disobedience of a court order, the
remarks must be clear and
unequivocal, added Trudel.
“If the lower court ruling would
have been upheld, it would have
created a dangerous precedent
that would have limited the right
to freedom of expression because
it implied that publicly disagreeing with a judgment is tantamount to inciting civil disobedience of a court order,” said Trudel.
The ruling also warns that in
cases where one is accused of
making remarks that infringe a
court order, the courts must be
even more prudent to infer incitement, noted Rebecca Laurin, a
Montreal lawyer who helped to
successfully defend Nadeau-
Dubois. For a person to be found
guilty of contempt of court, the
person must have committed an
illegal act (actus reus) and had
the required state of mind (mens
rea) for the criminal offence. Both
elements of the offence, the actus
reus and the mens rea, must be
proven beyond a reasonable
doubt, added Laurin. “The appeal
court ruling states that the courts
must be even more prudent in
such cases because the actus reus
will be demonstrated by the interpretation of the remarks, and
opinions are protected by the
freedom of expression provisions
in the Charter and the Quebec
Charter,” said Laurin. “Interpreting the remarks too liberally
risks paralyzing the right to freedom of expression.”
But Maxime Roy, who represented Jean-François Morasse, a
student who lodged the complaint
that Nadeau-Dubois encouraged
students to ignore the court
injunction, forcefully argued that
the ruling has created a “perilous
precedent” that will make it far
more difficult to find someone
guilty of contempt of court.
“This is not a case about freedom of expression but incitement,” said Roy, a Quebec City
criminal lawyer with Thibault,
Roy Avocats. “The ruling has
given weapons to people to be
more easily acquitted. It is a poorly
founded judgment that runs
against jurisprudence. Freedom of
expression does not allow” acquittal of someone who incites others
“to not respect a court order.
“I have the impression that the
appeal court reappropriated the
facts, the trial. In my opinion,
there was no error of law in the
decision of the judge of first
instance. The role of an appeal
court is not to change the verdict
because they think it should have
been something else. That’s what
I think they did.”
Morasse said he intends to file
an application for leave to
appeal before the Supreme
Court of Canada.
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THE LAWYERS WEEKLY
9
News
Capacity to instruct a question with aged clients
donalee Moulton
Lawyers can only act for clients if
clients can lucidly instruct them
and as Canada’s population ages,
questions about their capacity to
instruct are expected to increase.
“It’s an issue more lawyers have to
spend more time thinking about. It
raises ethical and legal issues,” said
Darrel Pink, executive director of
the Nova Scotia Barristers’ Society
in Halifax.
In Nova Scotia, for example, an
entire section of the law society’s
code of conduct is devoted to clients with diminished capacity. Section 3.2-9 identifies the two critical
factors in determining whether a
client has the capacity to instruct:
whether they can understand the
information needed to make a
decision, and whether they can
appreciate the consequences of
that decision.
“The standard for capacity to
instruct counsel is not a high one,”
noted Edgar Montigny, a staff lawyer with ARCH Disability Law
Centre in Toronto. “The client
Perez
should be able to identify the issue
that concerns them and express
their wishes in relation to that
issue. They need not understand
the relevant law or legal processes.”
Clients do not need to agree with
their lawyer, even when one course
of action is significantly preferable
to another.
“The legal test for capacity
focuses on ability, not wisdom,”
said Mercedes Perez, an associate
with Swadron Associates in
Toronto. “Clients can make foolish
decisions that are contrary to the
lawyer’s recommendation and still
be capable.”
There is no single test to assess
legal capacity. Rather, numerous
tests have been enshrined in legislation or established in common
law. “Capacity depends upon the
issue at hand,” said Geoffrey White,
an estate lawyer in Kelowna, B.C.
“As a lawyer, we need to identify the
issue and the applicable legal test of
capacity: to make a will, to make a
power of attorney, to give instructions for litigation.”
Getting a medical assessment
with the client’s consent will be
helpful, but not definitive.
“It is important to remember that
capacity tests are legal tests, not
medical tests,” said Perez. “Even if a
client has a diagnosis of learning
disability, intellectual disability,
cognitive disability or mental disorder, that client may still be capable
of instructing counsel. Even clients
subject to guardianship orders may
be capable of instructing counsel.”
Red flags regarding capacity to
instruct include forgetfulness,
uncertainty, disorientation, lack of
insight, excessive repetition, and a
fixation on issues. Repeatedly
coming back to an unsound plan
may also indicate the client does
not recognize risks, and inconsistency is another warning sign,
noted Montigny.
“If a client changes their goals or
instructions frequently, forgets or
contradicts previous instructions,
or changes the ‘facts’ or history of
their matter regularly, they may not
understand the information pertaining to their case well enough to
allow them to make decisions or
provide consistent instructions,”
said Montigny.
However, lawyers shouldn’t rush
to judgment on this issue. Issues
including vision, hearing, mobility
or speech problems could be at the
heart of the problem. Also, old age
alone does not correlate with a lack
of capacity. It is important — and
legally imperative — to accommodate the client’s challenges. White
recommends lawyers take very
good notes, identify the best time of
day for clients to meet, ask open-
ended questions, and have clients
confirm advice in their own words.
A follow-up meeting to re-confirm
any instructions is recommended.
Such accommodations are likely
to cost more, and it is not always
clear whether these costs should be
borne by the client, with their permission, or the lawyer. In part it
will depend on the nature of the
extra effort, but lawyers should be
prepared to assume these expenses.
“Because the lawyer has a duty to
accommodate, the costs of such
accommodation must be paid by
the lawyer. These are not usually
disbursements that can be charged
back to the client,” said Perez, an
adjunct professor at Osgoode Hall
Law School where she co-instructs
a law and psychiatry course.
Once a lawyer is convinced their
client does not have the capacity to
instruct, their obligation does not
end there. “If the client cannot give
an instruction, then we must consider whether they need a legal
representative appointed for them,
and take steps to protect them in
the meantime,” said White.
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• february 13, 2015
THE LAWYERS WEEKLY
Focus
ALTERNATIVE DISPUTE RESOLUTION
Leveling
the world’s
playing fields
Richard Pound
T
he big question within the context of an international sport system is how to
deal effectively with the resolution of disputes internationally. Most local
courts do not have the necessary expertise to deal easily with sport issues and
their decisions are effective only in the countries where the judgments are rendered
and often have to be re-litigated. Furthermore, the legal process is unsuited to the need
for speedy resolution of sport-related disputes, which often require expedited hearings, even in the middle of sport competitions, and many of the litigants (athletes) do
not have the financial resources to undertake expensive legal proceedings. At the other
end of the economic scale, however, there are many well-paid professional athletes and
wealthy team owners who can easily afford expensive legal fees to defend what may, in
the end, be little more than their economic interests. Prominent examples of this
would include Barry Bonds, Alex Rodriguez and Lance Armstrong.
This situation led the International Olympic Committee (IOC) to create the
Court of Arbitration for Sport (CAS) in 1984. The mandate of CAS was to deal
with sports-related disputes, mainly within the Olympic movement but also in
non-Olympic sports.
CAS is governed by the International Council of Arbitration for Sport (ICAS). The IOC,
the International Federations (IFs) and National Olympic Committees (NOCs) each
nominate four members. Those 12 members then select four additional members who are
1stGallery / iStockphoto.com
10
considered to be particularly knowledgeable of the concerns of athletes. The 16 members
of the ICAS then select four additional independent members with wide experience in
international arbitration.
The ICAS appoints arbitrators for renewable terms of four years. It establishes a list
from which the parties are able to select arbitrators.
There is a code of sports-related arbitration and mediation rules.
Supervisory control over CAS is exercised by the Swiss Federal Tribunal. That tribunal
has, however, recognized CAS as an independent arbitral tribunal whose judgments are
entitled to deference, and it intervenes only where the rules of natural justice have not
been followed, or where there may have been an error as to jurisdiction.
What is particularly appealing about this mechanism in the context of international
sport (in addition to the consensual nature of the arbitration process) is that, by reason of
the New York Convention, the awards are enforceable in almost all of the major countries.
Doping appeals tend to attract the most attention among all the cases heard by CAS,
partly due to the high profile of some of the athletes charged with anti-doping rule violations (for example, Floyd Landis and the above mentioned Lance Armstrong).
The World Anti-Doping Agency (WADA) was established in 1999, modeled roughly
along governance lines similar to CAS. Its principal office is in Montreal. It also has
regional offices in Tokyo, Lausanne, Johannesburg and Montevideo. WADA has a unique
hybrid governance structure, in which 50 per cent of its members are governments and
50 per cent are drawn from the sports movement. It also has a unique revenue structure — also 50-50.
WADA has drafted and adopted the World Anti-doping Code, which in turn has been
incorporated into the rules of the IOC, every Olympic IF and every NOC. It has worked
with governments, under the aegis of UNESCO, to put in place an International Convention on Doping in Sport which has been ratified by more than 175 countries, and in which
governments agree, among other things, that the code will be the basis for their actions
Jurisdiction, Page 13
THE LAWYERS WEEKLY
Focus
37081_YorkStreet_LawyerWeekly_v2_jan22_15
One chance to choose arbitrator
We can help you find the
Rebecca Jones
rbitration offers parties a
A
benefit not available in the
court system: the ability to have a
hand in selecting the individual(s)
who will decide your dispute. The
advantages of engaging the parties
in selecting their arbitrator are
obvious. The parties are best placed
to select an arbitrator with particular expertise relevant to the dispute,
and involvement in the selection of
the arbitrator should provide both
parties with confidence in the arbitrator’s ability to fairly determine
the dispute. One would expect that
parties who have had a hand in
choosing their arbitrator will be
more willing to accept his or her
determination of the outcome of
the dispute.
Once afforded this privilege,
however, the importance of exercising it effectively cannot be overstated. Once an arbitrator is
selected — either through agreement or through the intervention
of the court in the absence of agreement — there is very little ability to
later challenge the selection.
A decision last November of the
Court of Appeal for Ontario serves
as a helpful reminder of the consequences of parties’ failure to agree
on an arbitrator. In Toronto Standard Condominium Corp. No.
2130 v. York Bremner Developments Ltd. [2014] O.J. No. 5455,
the parties had entered into a contract with a broad arbitration
clause, which provided that either
party could apply to a judge of the
Superior Court of Ontario for the
appointment of a single arbitrator
in the event that they could not
agree on a proposed arbitrator
within 10 days of receiving a notice
of arbitration. This provision was
generally in line with Section 10(1)
of the Arbitration Act, 1991, which
provides: “The court may appoint
the arbitral tribunal, on a party’s
application, if, (a) the arbitration
agreement provides no procedure
for appointing the arbitral tribunal; or (b) a person with power to
appoint the arbitral tribunal has
not done so after a party has
given the person seven days
notice to do so.” Importantly, s.
10(2) explicitly precludes an
appeal from the court’s appointment of an arbitral tribunal.
The condominium corporation
issued a notice of arbitration and
proposed an arbitrator. The
respondents, York Bremner
Developments Limited et al, did
not respond to the arbitrator proposal within 10 days. The condo
corporation brought an application
Paul M. Iacono, Q.C.
Hon. Harvey Spiegel, Q.C.
Helen L. Walt
Douglas F. Cutbush
Margaret K. Rees
Tony Baker
Fred Sampliner
Richard D. McLean, Q.C.
David L. Smith, C.A.
Cindy Winer
Jeffrey Musson
John Beaucage
John W. Makins
Charles A. Harnick, Q.C.
Peter R. Braund
erhui1979 / iStockphoto.com
Once an arbitrator is
selected — either through
agreement or through
the intervention of the
court in the absence
of agreement — there is
very little ability to later
challenge the selection.
Rebecca Jones
Lenczner Slaght
seeking the appointment of an
arbitrator, which the respondents
disputed on the basis that none of
the issues in the condominium corporation’s notice of arbitration fell
within the ambit of the arbitration
agreement. The application judge
disagreed and appointed an arbitrator to determine his or her own
jurisdiction. York Bremner
Developments Limited appealed
the application judge’s appointment of an arbitrator (albeit on
the basis that the application
judge erred in not determining
which, if any, of the issues in the
notice of arbitration were arbitrable before appointing the arbitrator, and not based on the identity of the arbitrator), which the
Court of Appeal quashed on the
straightforward basis that the
appeal was barred by s. 10(2).
In other words, once the court is
dragged into a determination of
who will arbitrate a dispute, the
court’s decision is final. It is better,
of course, to reach a negotiated
resolution. Because of the general
rule, as articulated by the Supreme
Court, that “in any case involving
an arbitration clause, a challenge to
the arbitrator’s jurisdiction must be
resolved first by the arbitrator,”
(Dell Computer Corp. v. Union des
consommateurs [2007] S.C.J. No.
34), parties would be well advised
to resolve as between themselves
the identity of an agreeable arbitrator, even if they continue to disagree about whether the dispute is
subject to arbitration.
The importance of selecting an
appropriate arbitrator at first
instance is heightened due to the
practical difficulties of obtaining a
new arbitrator or differently constituted arbitral
panel following any
David L. Smith
appeal of the award. Section 45 of
the Arbitration Act, 1991, which
permits a party to appeal an arbitral decision on questions of law,
does not specifically contemplate
remitting an arbitral award to a
new tribunal. However, where a
party seeks to set aside an award on
the basis of one or more of the
grounds listed in s. 46, subsection
(7) does provide: “When the court
sets aside an award, it may remove
the arbitral tribunal or an arbitrator and may give directions about
the conduct of the arbitration.”
In Board of Regents of Victoria
University v. GE Canada Real
Estate Equity [2014] ONSC 7435,
Justice Herman Wilton-Siegel
rejected a party’s request to remove
the original arbitral tribunal and
direct a newly constituted panel of
arbitrators to re-hear the dispute.
The party had appealed the original arbitral award on a question
of law. Justice Wilton-Siegel
declined to recognize an ancillary
power under s. 46(7) in an appeal
under s. 45, and ultimately remitted the dispute to the same arbitration panel for a re-hearing.
The ability to select an arbitrator is a significant advantage, and
one that should be exercised carefully and co-operatively for the
benefit of all parties.
Rebecca Jones is a lawyer at
Lenczner Slaght Royce Smith Griffin.
Laura Robinson, student at law,
contributed to this article. The firm
acted for the appellant GE Canada
entities in the above appeal before
Justice Wilton-Siegel.
Derek Sarluis
To arrange a mediation, arbitration or appraisal, please call
our ADR Coordinator or book online.
(416) 866-2400
130 Adelaide Street West, Suite 701
Toronto, Ontario, M5H 2K4
T 416-866-2400 TF 1-844-967-5782 F 416-866-2403 www.yorkstreet.ca
NEXT WEEK IN FOCUS:
 Family Law
 Securities Law
11
12
Focus
THE LAWYERS WEEKLY
Seven traits of highly effective mediators
Finding the right mix of specialized knowledge, involvement and creativity is how to stay out of court
A good mediator can
quickly identify the
parties’ interests, narrow
the contentious issues
and bring the parties to
a mutual agreement in
circumstances where no
such common ground
existed theretofore.
Deborah Howden
ot all mediators are created
N
equal. Like many lawyers, I
have been to mediations where
settlement was a longshot and
where agreement between litigants was only achieved through
the sheer skill and effort of the
mediator. On the flip side, I have
also participated in mediations
which had a solid opportunity for
settlement, but which nonetheless failed because the mediator
was simply not up to the task. A
good mediator can quickly identify the parties’ interests, narrow
the contentious issues and bring
the parties to a mutual agreement in circumstances where no
such common ground existed
theretofore. It goes without saying that to be successful in this
regard, they must be first-rate
listeners, unbiased, honest, and
possess strong communication
skills. To be highly effective, however, something more is required.
That “something more” includes
the following:
Knowledge
It is uniquely unhelpful to the
mediation process if one must
explain the relevant law to the
mediator. Many years ago, I
attended a mediation session on
behalf of an employer client in a
wrongful dismissal case. During
settlement negotiations, the
mediator openly admitted that he
did not know the applicable law
relating to the extent of the
employee’s mitigation obligations. We did settle the case, but
it was in spite of the mediator,
not because of him. A highly
effective mediator is well versed
in the pertinent law and will be in
a position to point out the weaknesses in a party’s legal position.
Credibility
Closely tied to this extensive knowledge of the law is the ability to
make meaningful, important contributions to the issues in dispute
between the parties. These mediator “weigh-ins” must be useful and
persuasive, neither of which can
occur if the mediator’s opinions are
not considered trustworthy in the
eyes of all of the parties. Practically
speaking, this means the mediator
should have some relevant experience under his or her belt to establish some “street cred.”
Deborah Howden
Shibley Righton LLP
aluxum / iStockphoto.com
Tenacity
Parties typically attend mediation either because they have not
bothered to broach settlement
directly, or because they are at a
settlement impasse. In either
case, if the mediator is not
indomitable, the opportunity for
settlement will be lost. I personally have participated in several
mediation sessions where the
mediator folds up the proverbial
tent as soon as one of the parties
displays an intention to halt
settlement discussions. Highly
effective mediators are reluctant
to throw in the towel. They keep
the parties talking about settlement solutions. When the going
gets tough, these determined
mediators keep mediating and
push through impasses.
commentary that will drive a
wedge between the parties and
cause them to become more
entrenched in their positions
and less willing to negotiate.
Some aggressive mediators will
attempt to strong-arm parties
by openly sharing their disagreement for a certain position that has been taken by one
side or another. Polarizing commentary should almost always
be shared privately, and not
during any open sessions.
Intuition
A good mediator will wade
through legal positioning and
focus on a party’s true interests.
I defended a civil sexual assault
claim against an institutional
client many years back, and
settlement seemed almost
impossible. Near the end of the
mediation session, the mediator invited the parties into a
joint session where the plaintiff
was allowed to express to the
defendants (in very loud fashion) his anger, hurt and frustration. An apology was offered.
With the assistance of the
mediator, the parties finally
began real dialogue and less
than an hour later, the plaintiff
accepted a reasonable settlement offer. The plaintiff ’s claim
was never really about the
money — he just wanted to be
heard and believed, which the
mediator picked up on.
Creativity
Used with intuition, it can be the
secret to achieving settlement.
Effective mediators will propose
creative solutions to keep the
parties at the settlement table.
These solutions come as unique
proposals having regard to the
parties’ true interests.
Settlement is never inevitable.
The converse, however, is also
true — settlement
is
never
unachievable. Choosing the right
mediator can make the difference
between retiring a claim at earlier stages and having to go to the
courtroom steps — or further.
Deborah Howden is a partner at
Shibley Righton LLP and is a senior
member of the firm’s Labour &
Employment and Condominium
Law Groups.
Persuasion
Let’s face it — some mediators
work like highly-paid messengers, merely delivering offers to
and fro between the warring factions. You could save your client a
whole lot of money by simply
holding a settlement meeting or
engaging the services of a FedEx
delivery person. An effective
mediator will become actively
involved in the negotiations and
lean on the parties to effect a
settlement, leaving the pure messaging services to the men and
women in the brown uniforms.
Discretion
Nothing can derail settlement
negotiations like a mediator
providing his or her view of the
case — or even certain elements
of the case — to the parties at
the outset of the mediation. As
a neutral intermediary, the
mediator must refrain from
blueringmedia / iStockphoto.com
Bulldozer used to tidy up the house
Most men don’t make home renovation decisions without their wife’s
OK, but a Middletown, N.Y., man is in legal hot water for doing just that.
MSN.com reports that 48-year-old James Rhein became so frustrated
with the dilapidated condition of the 900-square-foot home he shares with
his wife that he rented a bulldozer and demolished it. Trouble is, his wife
was not only absent at the time but the house is in her name. The police
arrived to find Rhein filling dumpsters with debris, including furniture,
clothes and appliances. In his defence, he said he tried to call her but she
didn’t pick up. He also tried to get a demolition permit but the office was
closed for Martin Luther King, Jr. Day – he did have the water and gas
turned off. Rhein was charged with felony criminal mischief and released
on bail, but doesn’t see what all the fuss is about. “We’re married,” he
explained. “It’s a community asset.” Rhein’s wife was upset at first but has
calmed down he said, adding, “we’re good.” — STAFF
THE LAWYERS WEEKLY
Focus
13
International arbitrations: short and sweet
A lot of front end loading, minimum objections and strict time limits make global tribunals faster and more efficient
William Horton
ommercial litigation counsel
C
are often surprised to learn
how much shorter hearings in
international arbitrations can
be, even when the amount at
issue and the subject matter are
quite comparable to cases that
go to trial in the court system.
In one Stockholm Chamber
arbitration on which I sat as a
tribunal member, five days were
set aside for the final hearing of
a $10 to $20 million contract
dispute involving geothermal
power provided to a manufacturing facility. Nine lay witnesses and four experts were to
be examined. Counsel actually
completed all witness examinations and brief oral arguments
in a little over a day and a half.
How is that possible?
First, it must be borne in
mind that under most international rules of arbitration,
evidence — including reply and
rebuttal witness statements,
expert reports, and documents — is exchanged prior to
the hearing. The tribunal is
expected to have read everything in advance. Therefore,
the hearing is reserved for testing the evidence already submitted in writing.
Second, in addition to exchanging evidence in advance of the
hearing, the parties will typically
have exchanged memorials,
which are essentially written
submissions that relate the evidence to the law and arguments
submitted by the parties. Since
the parties have been given a full
opportunity to meet the factual
36712489 / iStockphoto.com
Nine lay witnesses and four experts were to be
examined. Counsel actually completed all witness
examinations and brief oral arguments in a little
over a day and a half. How is that possible?
William Horton
William G. Horton Professional Corporation
and legal case presented by the
other side, the need for any new
documents or evidence to be
presented at the hearing is minimal. The presentation of such
evidence at the hearing is
frowned upon and will likely be
given little weight in the face of a
legitimate objection.
Third, the exchange of factual
and legal submissions in advance
of the hearing means that it is not
necessary to cross-examine a witness on a point in order to submit
that the evidence of the witness
should be rejected. The “fairness”
principle that underlies the rule in
Brown v. Dunn has no application.
In any event, any contradiction
between the evidence of a witness
and other evidence will have, or
should have, already been noted in
the memorials, and any need to
respond should have been dealt
with in reply or rebuttal evidence.
Fourth, the rules of evidence
as conceived by any particular
legal system do not apply. The
tribunal relies on its own expertise and judgment to determine
what information should be
used as the basis of its decision.
Thus objections at a hearing
are rare and take little time.
Fifth, although the rules of
evidence may not be applicable,
the principle of relevance is
arguably more strictly and
effectively applied in international arbitration. However,
this principle is applied primarily at the pre-hearing disclosure
stage when, arguably, it does
the most good. The tribunal can
exercise its judgment about relevance relating to document
production issues with greater
rigour and confidence than a
motion judge because it is
deciding what it is likely to consider to be relevant in the final
analysis, and is not concerned
with being second-guessed by a
Court of Appeal that wishes to
“develop the law.”
Sixth, the absence of pre-trial
examinations for discovery and
depositions in virtually all
international
arbitration
means that hearing time is not
spent taking witnesses through
differently worded answers
given on prior occasions in the
hope of establishing a contradiction. The evidence of each
witness is judged by the tribu-
nal, using its experience and
expertise, against the documentary record, statements
from other witnesses and any
other facts in evidence.
Seventh, the imposition of
strict time limits for each side
to use at the final hearing
requires counsel to be strategic
in terms of how to use the allotted time. In most cases, time is
equally divided between the
parties and usage is tracked by
a chess clock or by a secretary
to the tribunal. Variations in
allocation are possible. Each
side can decide how it wants to
divide its time between examining witnesses, making submissions or objections etc. Counsel
who engages in discursive,
repetitive or abusive questioning soon runs out of time.
It must be noted that the
shortness of the final hearing in
international arbitration does
not automatically translate into
a cost saving for the parties,
although it certainly is more
efficient for the tribunal. Where
the tribunal is being paid on an
hourly basis, shorter hearings
can translate into significantly
lower costs of the arbitration
itself. Where the tribunal is
being paid on an ad valorem
basis (as in Stockholm Chamber and ICC arbitration) the
cost benefit to the parties is not
as direct. In either case, it might
be argued that the greater efficiency for the tribunal comes at
a higher cost to the parties
based on the greater pre-hearing activity required.
William Horton is an independent
arbitrator and mediator of
Canadian and international
business disputes.
We want to hear from you!
Send us your verdict:
[email protected]
Jurisdiction: Anti-doping gets the attention
against doping in sport.
WADA also ensures that the
final arbiter in matters of doping
is the Court of Arbitration for
Sport, not the state courts in each
country. Governments have
accepted this position.
WADA has the responsibility of
monitoring compliance with the
code and of reporting on compliance. WADA has an independent
right of appeal to CAS if it does not
agree with a decision regarding
compliance or a particular sanction
when there has been an anti-doping rule violation.
Governments seem comfortable with having doping cases be
decided by CAS. Their state
courts have crowded calendars at
best, with delays often measured
in years before cases can get to
trial, and there is little if any
experience with the complicated
scientific aspects of doping
appeals. Such courts always
remain a recourse of last resort
for their citizens if there has been
a denial of justice or due process.
The verdict on CAS and the
arbitrations conducted under its
jurisdiction, at least to date, is
that they have served the needs of
the stakeholders in international
sport quite well. The same would
be true of using the process of
mediation in sport.
Richard Pound is counsel at Stikeman
Elliott in Montreal. He is also a member
of the International Council of
Arbitration for Sport and an arbitrator
with the Sport Dispute Resolution
Centre of Canada.
Gus Richardson is pleased to offer his services as an arbitrator and
mediator throughout the Maritimes and Ontario from his Halifax
practice, Ad+Rem ADR Services.
+ With over 20 years litigation
experience at all levels of courts in Nova Scotia and Ontario, Gus
is also a Nova Scotia Small Claims Court adjudicator. Gus brings
those skills to his practice as an arbitrator and mediator in labour,
insurance, personal injury, commercial and condominium disputes.
phone 902.422.6729
email [email protected]
www.gusrichardson.com
14
THE LAWYERS WEEKLY
HEALTH LAW
Kuzma / iStockphoto.com
Focus
Resident abuse and neglect
Examining the duty to protect in retirement homes and long term care facilities
nNotify the resident’s substitute decision-maker (SDM). Homes must ensure that a
Lisa Corrente
I
n Ontario, the Retirement Homes Act, 2010 and the Long-Term Care Homes Act,
2007 require retirement homes and long-term care facilities to protect their residents from abuse by anyone, and from neglect by the home and its staff. These
statutory duties to protect residents include the obligation for homes to investigate and respond to alleged, suspected or witnessed incidents of abuse and
neglect of residents.
Failure by a home to comply with its duty to protect residents can carry serious
consequences, including the revocation of the home’s license to operate. Accordingly,
it is imperative for homes to conduct thorough and timely investigations, and to
appropriately respond to incidents of resident abuse and neglect. The steps to properly investigating and responding to alleged incidents of resident abuse and neglect
include the following:
nConduct a timely and thorough investigation. Investigations into allegations of resident abuse and neglect must be immediately commenced. Delay in commencing an
investigation can lead to problems including faded memories, physical injuries which
have healed, or documents that have been lost or destroyed. Therefore, it is essential
for homes to allocate an adequate number of management staff to gather and review
evidence quickly and thoroughly, or to hire an external investigator to promptly complete the investigation.
SDM, if any, and any other person specified by the resident is notified upon the home
becoming aware of an alleged incident of abuse or neglect. If the incident has resulted
in physical injury, pain or distress to the resident that could potentially be detrimental
to his or her health or well-being, the notification must be immediate. In all other
cases, the legislation requires notification within 12 hours.
nNotify police. If a home suspects that an incident of abuse or neglect of a resident
may constitute a criminal offence, the appropriate police force must be immediately
notified. Incidents which require a home to immediately notify police include allegations of physical abuse, sexual assault, uttering threats, unlawful confinement, failing
to provide the necessaries of life, fraud, forgery and theft.
nProvide interventions for the resident. Assistance and support are to be provided by
the home to a resident who has been allegedly abused or neglected. For instance, the
resident’s physical and emotional condition should be immediately assessed by health
professionals on staff at the home, and any necessary medical treatment must be provided and documented. If the resident is mentally capable and consents (or consent is
obtained from the resident’s SDM), any physical injuries should be photographed by
the home. As well, if the resident is capable, he or she should be promptly interviewed
by investigators and a signed statement describing the incident should be obtained
from the resident.
nReport the incident to regulators. The RHA and the LTCHA contain provisions for
the mandatory reporting of certain incidents. Homes must immediately report to the
Retirement Homes Regulatory Authority or the Ministry of Health and Long-Term
Care if they have reasonable grounds to suspect improper or incompetent treatment
or care of a resident, abuse of a resident by anyone or neglect of a resident by the home
or its staff, unlawful conduct that resulted in harm or a risk of harm to a resident, or
misuse or misappropriation of a resident’s money. If the abuser is a regulated health
Investigations, Page 15
THE LAWYERS WEEKLY
Focus
15
HEALTH LAW
The push is on for more disclosure
Health care practitioners should be ready for less privacy as regulators respond to public demand
Bernie LeBlanc
Marc Spector
hat does the public know
W
about the people they
trust, such as those who provide them with health care?
Conversely, do health care practitioners have any right to privacy? In answering these questions we want to strike the right
balance, but it’s almost impossible because things are
changing constantly. However,
the public insists that regulators keep trying.
The media has recently
reported on what regulators are
doing to protect the public,
including
how
Ontario’s
Ombudsperson has addressed
the shocking cases of unlicensed
day care facilities, and pain
clinics which have unwittingly
spread disease. A common
theme in the coverage is that
the public does not have enough
information to make informed
choices about the people who
take care of them. This is not
surprising. In fact, the public
actually has access to very little
information about these professionals, notwithstanding unreliable consumer-rating websites.
For example, the public can
generally access only certain
information about health care
professionals, such as:
nBasic contact information;
nDetails of the health care
practitioner’s class of registration and specialist status, and
the terms, conditions and limitations on their certificate of
registration;
nA notation of every matter
which has been referred to the
regulator’s discipline committee until the matter is resolved;
nA synopsis of the decision,
emreogan / iStockphoto.com
In terms of health care, without changes to their
bylaws, regulators can only publicly discuss an
ongoing investigation ‘if there is a compelling public
interest in the disclosure of that information.’
Bernie LeBlanc and Marc Spector
Steinecke Maciura LeBlanc
and every disciplinary and
incapacity proceeding, along
with a notation of every single
finding of professional negligence or malpractice; and
nA notation that a practitioner
has resigned, and has agreed to
never practise again in Ontario.
That is most of it. But what
about matters not deemed to be
serious enough to proceed to
the discipline committee?
There are a great many of those.
According to the College of
Physicians and Surgeons of
Ontario, only two per cent of
complaints end up at the discipline-committee stage. The figure is similar for lawyers.
According to reported statistics, only 100 of the 4,700 complaints received by the Law
Society of Upper Canada each
year prompt a public disciplinary hearing.
According to The Toronto Star,
the public was shut out of a
complaint involving two lawyers
who had allegedly been part of
the bribery scandal concerning
Senator Mike Duffy, who last
July was charged with 31 criminal offences including fraud,
breach of trust and bribery.
“The law professor who complained about two lawyers for
their role in the $90,000 payment says the public has a ‘right
to know’ more about the law
society investigations,” the Star
wrote. The law professor called
this “a black box.”
Although the complaints were
dismissed, the person bringing
them felt shut out of the process, probably because most
complaints and investigations
are generally kept confidential.
The law society said that its
policy is to provide the public
and media with as much information as it can under the law.
In terms of health care, without changes to their bylaws,
regulators can only publicly
discuss an ongoing investigation “if there is a compelling
public interest in the disclosure
of that information.” This is
according to Subsection 36(1)
(g) of the Regulated Health Professions Act.
The provincial government
wants action. Eric Hoskins,
Minister of Health and LongTerm Care, has demanded
greater transparency from
Ontario’s health colleges, asking
them to report on the steps being
taken toward this end. The regulators did so in December.
Some practitioners have resisted
the trends, claiming they have a
right to be presumed innocent
and asserting that many complaints, even frivolous or innocuous ones, have the potential to
ruin careers. Some regulators say
that disclosing investigations
could compromise their ability to
find the information they need.
They say it’s no coincidence that
police rarely publicize their
ongoing investigations unless
there is a good reason.
While the debate continues,
some health care colleges have
already amended their by-laws
by setting out information that
must be contained on their
registers, while others are actively amending them. Many are
doing so in two phases. For
example, right now the College
of Physicians and Surgeons of
Ontario is seeking feedback on
its
Transparency
Project — Phase 2. Its website
phrased it this way:
“What do patients need to
know about physicians to make
informed health-care decisions? The College is currently
looking to expand the information available about physicians
on our public register, and we’re
asking for your feedback.”
With these changes, all regulators can publicize decisions
that fall short of discipline. This
could include when they order
practitioners to undergo additional education or remediation
programs, cautions, and undertakings. It could also include
revealing information about
criminal charges, bail conditions, and disciplinary action
taken in other jurisdictions.
The public is demanding it,
and everyone is listening.
Bernie LeBlanc and Marc Spector
are partners with Steinecke
Maciura LeBlanc, which acts in
some capacity for most health
colleges in Ontario, and for about
40 regulators in all. The firm also
acts for the Federation of Health
Regulatory Colleges of Ontario.
Investigations: Homes advised to familiarize themselves with statutory duties
professional, homes are required
to make a report to the abuser’s
professional college.
nProvide interventions to abusers. An appropriate response to an
incident of resident abuse or neglect also requires homes to provide interventions to deal with
persons who have abused or neglected residents. Such interven-
tions could include steps to discharge a violent resident from the
home, terminating the employment or otherwise disciplining an
abusive staff member, or
restricting or prohibiting visitations by abusive family members
and friends of the resident.
nReport on the investigation and
outcome. A report and/or record
of the incident must also be main-
tained by the home. In the case of
long-term care homes, the report
must be filed with the Ministry
and is required to include a
detailed description of the incident, all individuals involved,
actions taken in response to the
incident, and the home’s analysis
and follow-up action. A preliminary report must be filed within 10
days of the home becoming aware
of the incident, and a final report
submitted as specified by the Ministry. As well, homes are required
to ensure that the resident and the
resident’s SDM are notified of the
results of the investigation
immediately upon its completion.
Failure by a home or its staff to
protect residents from abuse and
neglect, and to promptly and
properly report such incidents is
an offence punishable by substantial fines and/or imprisonment.
Therefore, homes are well advised
to familiarize themselves with
their statutory duties and to seek
advice as necessary.
Lisa Corrente is a partner with the
health law group at Torkin Manes.
She can be contacted at 416-643-8800
or [email protected].
16
THE LAWYERS WEEKLY
Digest
Administrative
Law
Judicial review and
statutory appeal
Practice and procedure - Parties Standing or locus standi - Costs
Appeal by StudentAid from an
award of special costs in favour
of the respondents on a judicial
review
application.
The
respondents disputed decisions
by the appellant revoking their
designation as educational
institutions whose students
could obtain student loans. The
respondents argued that the
appellant’s administrative process was fundamentally flawed
on procedural and substantive
grounds.
The
appellant
responded to the judicial review
application in a very comprehensive way by exhibiting and
explaining the record, making
submissions on jurisdiction and
procedural fairness, making
arguments on the nature and
purpose of the statutory
scheme. Without objection
from the respondents or the
court, the appellant also
responded to the merits of the
application. After two days of
hearing, the appellant consented to an order quashing the
decisions on the basis of one
breach of procedural fairness.
The chambers judge awarded
special costs for the entire proceeding, including hearing days
dedicated to other issues. The
appellant argued that the costs
award was contrary to the general rule that costs were not
awarded against an administrative tribunal.
HELD: Appeal allowed. The
chambers judge erred in principle in grounding the award of
special costs on the appellant’s
conduct in making submissions
and leading evidence which
went to the merits. The appellant was required to do so, as no
other respondent was at bar. In
the circumstances of this case,
the appellant had standing to
make those submissions and no
contrary position was taken by
the respondents. The appellant
conceded a breach of procedural fairness in respect of only
one aspect of the process, but
the chambers judge seemed to
have considered all the alleged
breaches as established in
agreeing that the process was
grossly unfair from top to bottom. This conclusion could not
properly find an award for special costs in the circumstances.
It was appropriate to award the
respondents costs at scale C for
their first two days of the pro-
ceedings as the appellant had
conceded a significant and clear
breach of natural justice. This
aspect of the matter properly
attracted the jurisdiction to
cautiously award costs against
the tribunal found to be in
error. The remainder of the
hearing dates were taken up
with submissions on the proper
construction of the statutory
scheme and potential directions from the court to the
respondents to guide their
reconsideration. The appellant’s participation in these
submissions was not objectionable and the traditional costs
immunity should apply.
18320 Holdings Inc. (c.o.b. Automative Training Centres) v. StudentAid
BC, [2014] B.C.J. No. 3102 , British
Columbia Court of Appeal, R.J.
Bauman C.J.B.C., M.E. Saunders and
A.W. MacKenzie JJ.A., December 17,
2014. Digest No. 3437-001
Civil Litigation
Civil procedure
Discovery - Production and inspection
of documents - Scope - Documents
not property of party
Appeal by the plaintiff from
orders requiring the appellant
to produce documents not in
her possession. The appellant
sued for injuries suffered in a
slip and fall accident at the
respondent’s grocery store. The
respondent disputed that there
was a causal link between her
fall and the alleged injuries,
health problems and losses.
The motion judge ordered the
appellant to produce documents in the possession or control of a pharmacy and Rehabilitation
Alternatives.
The
appellant disputed that these
documents were in her control.
HELD: Appeal allowed in part.
The order for production of the
pharmacy documents was
overly broad. The appellant had
an enforceable right to a copy of
her personal health information only to the extent it was
accessible by her pursuant to
the Personal Health Information Privacy and Access Act. As
a result, the pharmacy might be
required to exclude some information from the package to be
transmitted to the appellant.
The appellant’s statutory right
of access, thus, did not necessarily extend to all of the documents in the possession or control of the pharmacy. The order
was, thus, varied to provide for
the appellant’s production for
inspection of any and all docu-
ments released by the pharmacy pursuant to the Act. The
order directing the appellant to
produce for inspection the
documents in the possession or
control
of
Rehabilitation
Alternatives was set side.
Rehabilitation Alternatives was
not a custodian within the
meaning of the Personal Health
Information Privacy and Access
Act and the appellant was not
its patient. There was no evidence that the appellant had
any legally enforceable right to
a copy of the documents held by
Rehabilitation Alternatives.
Rumble v. Sobeys Inc., [2014] N.B.J.
No. 322, New Brunswick Court of
Appeal, J.E. Drapeau C.J.N.B., M.E.L.
Larlee and B.V. Green JJ.A., December 18, 2014. Digest No. 3437-002
Constitutional
Law
Constitutional
proceedings
Appeals and judicial review - Practice
and procedure - Orders - Stay of orders
Application by the appellants,
Hemmerich and Whitby, for
orders staying driving prohibitions and monetary penalties
pending their appeals. In 2012,
British Columbia enacted
amendments to the Motor
Vehicles Act aimed at addressing constitutional deficiencies
in the legislative regime governing roadside prohibitions
for impaired driving offences.
The appellants each received
roadside prohibitions after the
2012 regime came into force.
The Superintendent confirmed
their suspensions on review.
The appellants filed petitions
for judicial review challenging
the constitutionality of the
2012 regime. Meanwhile, an
identical petition was brought
and the appellants’ penalties
were stayed for 30 days pending its determination. The constitutionality of the 2012 regime
was subsequently affirmed and
the stay was lifted. A further
interim stay of the penalties
was refused on the basis there
was no serious question to be
tried given the jurisprudence
affirming the constitutionality
of the regime. The appellants
filed an appeal and sought
orders staying their driving
prohibitions and their liability
for payment of a $500 fine and
$250 reinstatement fee.
HELD: Application dismissed.
Although the appellants’ constitutional challenge was not
frivolous, neither established
they would suffer irreparable
harm in the absence of a stay of
the administrative penalties.
Hemmerich had one day
remaining on her driving suspension and there was no suggestion she was unable to pay
the financial penalties. Similarly, there was no suggestion
Whitby was unable to afford the
financial penalties. Although
Whitby initially deposed he
required a vehicle for his
employment, he did not file an
updated affidavit stating how
he had managed to work for the
67 days his licence had been
under suspension, and there
was no indication of the harm
he would suffer if he was unable
to drive for a further 23 days.
The balance of convenience
favoured allowing the penalties
to stand given the narrow constitutional challenge to the convictions and the public interest
in removing impaired driving
offenders from the roadways in
a timely manner.
Hemmerich v. British Columbia
(Superintendent of Motor
Vehicles), [2014] B.C.J. No. 3070,
British Columbia Court of Appeal,
R. Goepel J.A., December 12, 2014.
Digest No. 3437-003
Criminal Law
Criminal Code offences
Homicide - First degree murder Assaults - Sexual assault - Kidnapping,
hostage taking and abduction Kidnapping - Attempts, conspiracies
and accessories - Accessories - Aiding
and abetting
Appeal by the accused, Briscoe,
from convictions for kidnapping,
sexual assault, and first degree
murder. The victim, Courtepatte,
was 13 years of age. Courtepatte
and a friend, Bird, were lured
from a mall on the promise of a
party. The accused drove the pair
and four others to a golf course
outside of the city. The accused
acknowledged his role as the
driver. He also acknowledged that
he was present when Courtepatte
was sexually assaulted by two
others, Laboucan and Williams,
before she was stabbed and beaten
to death, but denied any responsibility. The accused was convicted
as having aided and abetted
Laboucan. He was acquitted of
charges related to the murder of a
sex trade worker that had occurred
two days earlier, and to which
Laboucan was connected through
DNA and physical evidence. The
accused appealed on the basis the
trial judge erred in finding that
the accused was aware Courte-
patte was misled as to the purpose
of the trip at the time of driving,
thereby being involved in a kidnapping linked to the sexual
assault and murder. The accused
further submitted that the trial
judge erred in declining to find
police breached his right to counsel, and erred in failing to exclude
statements made to police investigating the killings.
HELD: Appeal dismissed. There
was no error in the trial judge’s
path to conviction. Any misconception by the trial judge as to
whether the accused was present
when misrepresentations were
made to Courtepatte about a party
was immaterial and of no juridical
significance. The accused was
present with Laboucan at the
murder of the sex trade worker in
a remote area two days prior to the
murder of Courtepatte. There was
ample evidence to permit the
inference that the accused knew
Laboucan lured Courtepatte into
the car on the basis of a false
promise, irrespective of whether
the accused was present when
such promises were made. Courtepatte’s agreement to accompany
the group did not involve genuine
consent and thus constituted the
actus reus of kidnapping. With the
exception of the request to submit
to a DNA test, the trial judge did
not err in finding no breach of the
accused’s s. 10(b) Charter rights by
police. The request for a DNA
sample was a non-routine procedure that reengaged the accused’s s.
10(b) rights, and he should have
been re-advised of such. Otherwise, the interactions between the
accused and the police were interviews that did not involve new
investigative procedures necessitating re-advisement of the right
to counsel. The accused’s decision
to talk to police after receiving
legal advice was not tainted by
involuntariness or by police steering the accused from his counsel of
choice. The error with respect to
the DNA request was of no consequence, as there was no basis for
appellate interference with the
trial judge’s reasons for admission
of the accused’s statements pursuant to s. 24(2) of the Charter.
R. v. Briscoe, [2015] A.J. No. 9,
Alberta Court of Appeal, C.D.
O’Brien, J. Watson and R.S.
Brown JJ.A., January 8, 2015.
Digest No. 3437-004
Criminal Code offences
Offences against person and
reputation - Motor vehicles Dangerous operation of motor vehicle Causing death
Appeal by the Crown from the
acquittal of the accused on two
counts of dangerous driving caus-
THE LAWYERS WEEKLY
17
Digest
ing death. As the accused
approached an intersection, she
moved into the right-turn only
lane. Rather than turn right, the
accused proceeded through the
intersection while the light was still
red. She hit an island or swerved to
avoid it, lost control of the vehicle,
hit another median, vaulted into
the air and rolled on top of another
vehicle, killing two passengers. An
accident reconstructionist estimated that the accused was travelling at a speed of between 100 and
130 kph in an area were the posted
speed limit was 80 kph. At trial, the
accused alleged that she was travelling to her boyfriend’s house after
an emotional and exhausting shift
at the hospital where she worked.
She moved into the right-turn lane
believing it was an open lane and
briefly looked away from the road.
She was wiping away tears when
she realized the light was red and
that the lane she was travelling in
was not a through lane. She panicked and swerved. She denied
that she was speeding excessively,
but admitted she might have been
travelling at 90 kph. The Crown’s
theory was that the accused deliberately drove in a dangerous fashion and was attempting to jump
the line of traffic ahead of her to
get to her boyfriend’s place faster.
The trial judge accepted the evidence of the accused and found
that the Crown’s theory was not
supported by the evidence. She
found that neither the accused’s
failure to see the signs indicating
the lane was right-turn only, her
proceeding into the intersection
on a red light nor her travelling in
excess of the speed limit was a
marked departure from the norm
and that even considered together
they were part of a momentary
error and not a marked departure
from the norm. As a result, she
acquitted the accused.
HELD: Appeal allowed. Accepting
the accused’s testimony that she
erred in thinking the lane was a
through lane, that she did not see
the red light and did not think she
was speeding, ought not to have
been determinative of whether her
acts were a marked departure from
the standard of care expected of a
reasonable person in the circumstances. What was required in
assessing the mens rea of the
offence was consideration whether
the degree of care exercised by the
accused was a marked departure
from the standard of care that a
reasonable person would have
exercised. By examining only the
three acts that the Crown relied on
to support its principle theory, that
she took a dangerous route, drove
through a red light and was speeding, the judge effectively applied a
subjective standard. The judge
erred in not considering the
accused’s conduct in light of all of
the relevant evidence in order to
determine whether it was a marked
departure from the standard of
care expected of a reasonable person in the accused’s circumstances.
R. v. Hecimovic, [2014] B.C.J. No.
3066, British Columbia Court of
Appeal, D.F. Tysoe, N.J. Garson and
P.M. Willcock JJ.A., December 12,
2014. Digest No. 3437-005
Damages
For torts
Affecting the person - Defamation Method of publication - Television Internet
Application by the plaintiff,
Whatcott, for summary judgment in his action against the
defendant,
the
Canadian
Broadcasting
Corporation
(CBC). The plaintiff was a prolife and pro-family advocate
opposed to homosexuality. He
had a long history of picketing,
demonstrations, and distribution of flyers in support of his
opinion. The plaintiff ’s activism became the subject of a
human rights hate speech complaint that made its way to the
Supreme Court of Canada. The
CBC covered the case and aired
various news stories. The plaintiff alleged that he was defamed
by a video clip aired by the CBC
on television and internet
newscasts.
The
newscast
depicted a flyer that included a
poem or song that included
lyrics about killing homosexuals. The lyrics were adapted
from a song, Kill the Christian,
which was the subject of prior
Alberta human rights proceedings. The plaintiff submitted
that the flyer was not an incitement of violence, but was rather
a use of the lyrics from the prior
proceeding in an effort to draw
attention to his human rights
proceedings. The plaintiff
alleged that the manner and
context in which the CBC presented the words he authored
in his flyer was seriously distorted and misrepresented his
views in a manner that was
defamatory. He sought general,
aggravated and punitive damages. The CBC submitted that
the broadcast did not convey a
defamatory meaning and that
the case was not suitable for
summary judgment.
HELD: Application allowed.
There was no genuine issue
which required a trial. The content of the broadcast and the
flyer was not in dispute. The
CBC broadcast conveyed a
defamatory meaning. By focusing the camera on the phrase,
“kill the homosexual,” the CBC
conveyed the impression that
the plaintiff ’s activism was considerably more extreme than it
actually was, thereby injuring
his reputation in the estimation
of reasonable viewers. The
manner in which the plaintiff ’s
words were conveyed was
restated in a context that dis-
torted their intended meaning.
The defence of justification was
not available, as there was no
evidence the plaintiff encouraged acts of violence against
homosexual persons. The
defence of qualified privilege
through neutral reportage was
not
established,
as
the
impugned excerpt was not a
matter of public interest or relevant to the focus of the broadcast as a whole. The plaintiff
was awarded general damages
of $20,000 and aggravated
damages of $10,000. The general damages award reflected
the fact that the plaintiff suffered no pecuniary loss and did
not hold a position of high
standing in the community. The
aggravated damages award
reflected credible evidence of
actual malice given the manner
in which the CBC presented the
flyer in its newscast. A significant mitigating factor was the
plaintiff ’s role in authoring the
flyer as a means of attracting
attention. No punitive damages
were warranted.
Whatcott v. Canadian Broadcasting Corp., [2015] S.J. No. 20, Saskatchewan Court of Queen’s
Bench, R.W. Elson J., January 8,
2015. Digest No. 3437-006
Family Law
Custody and access
Primary residence - Practice and
procedure - Orders - Variation or
amendment of orders - Consent order
Appeal by the mother from a custody order changing her daughter’s
primary residence from her mother
to the father. The parents never
resided together. The child, born in
2003, had always resided with her
mother and had very little contact
with her father during the first two
years of her life. Pursuant to a 2009
interim order, the father was
granted access every other weekend, as well as, Christmas and
Easter access and one week during
the summer. In 2012 the parties
entered into a written agreement
which was incorporated into a consent judgment providing for joint
custody and primary residence
with the mother. At the time, the
father was deeply concerned by the
fact that the child was absent from
and or late for school a significant
amount of time. The agreement,
thus, provided that if the child was
absent from school more than once
without authorization, then her
primary residence would be automatically changed from the mother’s home to the father’s home. The
child’s absences from school again
became problematic during the
2013/2014 school year and eventually led the father in May 2014 to
apply to enforce or vary the consent
judgment so that the child’s primary residence would be with him.
chambers judge erred in relying
too heavily on the enforcement
provisions of the consent judgment to trigger a fundamental
alteration of the parenting
regime, which included both
changing the child’s primary
parent and relocating her to
another community. An automatic change of custody, primary residence or access, if a
parent did or failed to do certain things, was not appropriate. Such provisions did not
take into account the best interests of the child at the time an
alleged breach occurred. Those
interests should never be sacrificed in the interests of expedience or enforcement. The
chambers judge varied the parenting regime without appropriate evidence of the child’s
best interests. The evidence
before the chambers judge was
solely in the form of affidavits,
and he had, thus, no way to
resolve the contradictory evidence on critical issues such as
whether the child’s absences
from school following the making of the consent judgment
were authorized or acceptable
and the state of her physical or
mental health. The chambers
judge relied on a dated custody
and access assessment which
was not properly admitted as
evidence before him. While the
assessor might very well have
been accurate in her conclusions, it was not appropriate to
rely on that assessment without
allowing the parties an opportunity to cross-examine or challenge its contents.
Hine v. Campbell, [2014] S.J. No.
730, Saskatchewan Court of Appeal,
G.R. Jackson, J. Klebuc and J.A.
Ryan-Froslie JJ.A., December 16,
2014. Digest No. 3437-007
Government Law
Access to information and
privacy
Access to information - Inspection of
public documents - Bars and grounds
for refusal - Confidential information Appeals and judicial review
Application by the Alberta
Teachers’ Association (“the
union”) to strike the appeal of the
Information and Privacy Commission from an order allowing
the union’s application for judicial review of an adjudicator’s
decision under the Freedom of
Information and Protection of
Privacy Act upholding the school
board’s decision of non-disclosure. The school board was part
of the School Boards Employer
Bargaining Authority (the
“Authority”) which was authorized as agent of its member
boards to enter into the collective bargaining process with the
union. Collective agreements
were negotiated between the
Authority and the union in January 2008. In March 2008, the
union requested from the school
board the Authority’s constitution and related by-laws to gain a
full understanding of the Authority’s operation with its member
school boards to ensure that the
union was able to act fully on the
new collective agreements and
represent its teachers. The school
board refused to produce most of
the requested information and
the union asked the Privacy
Commission to investigate. The
adjudicator confirmed the school
board’s decision to refuse access.
The union then sought judicial
review of the adjudicator’s decision. The court allowed the
application for judicial review in
part. The judge found the adjudicator’s decision reasonable in
some respects and unreasonable
in others. She directed disclosure
of certain records to the union
and remitted the matter to a different adjudicator for a rehearing on the issue of nondisclosure
of other documents. The Privacy
Commissioner appealed from
the judicial review decision. The
union sought to strike the appeal.
HELD: Application allowed. The
appeal was moot as there was no
longer a live issue between the
parties. The parties had settled
the labour dispute that was in
issue when the union requested
the documents and the Authority had long since been disbanded. The court should not
exercise its discretion to hear
the appeal as the only party to
appeal was the Privacy Commissioner, who was not a party to
the original dispute, and the
matter should have terminated
years ago when the Authority
was disbanded. Furthermore,
the Privacy Commissioner
lacked standing to appeal.
Alberta Teachers’ Assn. v. Buffalo
Trail Public Schools Regional Division no. 28, [2014] A.J. No. 1394,
Alberta Court of Appeal, R.L. Berger, B.K. O’Ferrall JJ.A. and P.R.
Jeffrey J., December 15, 2014.
Digest No. 3437-008
Labour Law
Constitutional issues
Canadian Charter of Rights and
Freedoms - Freedom of association
Appeal by Meredith and
another elected member of the
national executive of the Staff
Relations Representative Program at the Royal Canadian
Mounted Police (RCMP) from a
judgment of the Federal Court
of Appeal setting aside a decision declaring unconstitutional
the Treasury Board decision to
limit wage increases for the
18
THE LAWYERS WEEKLY
Digest
years 2008 to 2010 as well as
some statutory provisions. In
setting RCMP members’ pay,
the Treasury Board acted on
recommendations
received
from an advisory board called
the Pay Council, which included
representatives of RCMP members. In light of the Pay Council’s recommendations, the
Treasury Board announced
increases for the years 2008 to
2010. The global financial crisis
that reached its peak in the fall
of 2008 led the Treasury Board
to revisit the salary increases. It
communicated a revised wage
decision providing for salary
increases inferior to what was
initially announced for the
years 2008, 2009 and 2010.
Enacted a few months later, the
Expenditure Restraint Act
(ERA) imposed limits on wage
increases in the public sector.
Any terms or conditions providing for increases additional
to those provided for in the
ERA were of no effect. The Federal Court allowed the application for judicial review of the
Treasury Board’s revised wage
decision. It declared that the
decision and ss. 16, 35, 38, 43,
46 and 49 of the ERA violated
s. 2(d) of the Canadian Charter
of Rights and Freedoms (Charter), and that neither violation
was saved by s. 1. The Federal
Court of Appeal held that the
application judge had committed an error of law by treating
the Treasury Board decision
and the ERA as a single limit on
freedom of association and by
failing to conduct separate constitutional analyses of each.
HELD: Appeal dismissed. Section 2(d) of the Charter protected workers’ freedom to
associate and pursue their
workplace goals through collective bargaining. State action
could not substantially impair
the employees’ collective pursuit of workplace goals. For the
affected RCMP members, the
ERA resulted in a rollback of
scheduled wage increases from
the previous Pay Council recommendations accepted by the
Treasury Board and eliminated
other anticipated benefits.
However, the process followed
to impose the wage restraints
did not disregard the substance
of the usual procedure, and
consultations on other compensation-related issues, either in
the past or the future, were not
precluded. The negotiation of
additional allowances within
the RCMP was even permitted
in certain circumstances. The
record indicated that RCMP
members were able to obtain
significant benefits as a result
of
subsequent
proposals
brought forward through the
existing Pay Council process.
The enactment of the ERA thus
had a minor impact on RCMP
members’ associational activity.
The Pay Council continued to
afford them a process for consultation on compensationrelated issues within the labour
relations framework that was
then in place, even if it was
found to be constitutionally
inadequate in a companion
case. The ERA and the government’s course of conduct could
not be said to have substantially
impaired the collective pursuit
of the workplace goals of RCMP
members. Section 2(d) of the
Charter was not breached.
Meredith v. Canada (Attorney General), [2015] S.C.J. No. 2, Supreme
Court of Canada, McLachlin C.J. and
LeBel, Abella, Rothstein, Cromwell,
Karakatsanis and Wagner JJ., January 16, 2015. Digest No. 3437-009
Constitutional Issues
Canadian Charter of Rights and
Freedoms - Freedom of Association
Appeal by Mounted Police Association of Ontario (“MPAO”)
and British Columbia Mounted
Police Professional Association
(“BCMPPA”) from judgment of
the Ontario Court of Appeal
which held that the current
Royal Canadian Mounted Police
(“RCMP”) labour relations
scheme did not breach s. 2(d) of
the Charter. The Court considered whether the exclusion of
RCMP members from collective
bargaining under the Public
Service Labour Relations Act
(“PSLRA”) and the imposition of
a non-unionized labour relations regime violated the guarantee of freedom of association
under s. 2(d). Members of the
RCMP were excluded from collective bargaining under the
PSLRA by the definition of
“employee” contained in paragraph (d) of s. 2(1) of the Act.
Section 96 of the Royal Canadian Mounted Police Regulations (“Regulations”), which was
in effect at the time of the hearing of the appeal, established
the Staff Relations Representative Program (“SRRP”) as the
primary mechanism through
which RCMP members could
raise labour relations issues
(excluding wages), and was the
only form of employee representation recognized by management. The appeal centred on
whether s. 96 of the Regulations
and the paragraph (d) definition
of “employee” under s. 2(1) of
the PSLRA infringed s. 2(d) the
Charter, and if so, whether any
infringement was a reasonable
limit prescribed by law as could
reasonably be justified in a free
and democratic society. The
appellants were voluntary, private associations of RCMP
members organized at the initiative of members. The appellants
had never been recognized for
the purpose of collective bargaining or consultation on
workplaces issues by RCMP
management or the federal government. The appellants challenged the exclusion of RCMP
members from the application
of the PSLRA and asked that
para. (d) of the definition of
“employee” in s. 2(1) be struck
down. The appellants also submitted that the current labour
relations scheme denied RCMP
members any meaningful process of collective bargaining.
HELD: Appeal allowed. The s.
2(d) guarantee of freedom of
association protected a meaningful process of collective bargaining which was meant to
provide employees with a
degree of choice and independence sufficient to enable them
to determine and pursue their
collective interests. The current
RCMP labour relations regime
denied RCMP members that
choice, and imposed on them a
scheme that did not permit
them to identify and advance
their workplace concerns free
from management’s influence.
The imposition of the SRRP
under s. 96 of the Regulations
and the exclusion of RCMP
members from the application
of the PSLRA infringed s. 2(d)
of the Charter and neither
infringement was justified
under s. 1. The appropriate
remedy was to strike down the
offending provision of the
PSLRA under s. 52 of the Constitution Act. The Court would
have also struck down s. 96 of
the Regulations, had it not
already been repealed. The declaration of invalidity pertaining
to paragraph (d) of the definition of “employee” in s. 2(1) of
the PSLRA was suspended for a
period of 12 months. In arriving
at the above conclusions, the
Court determined that, viewed
purposively, s. 2(d) of the Charter protected three classes of
activities: (1) the right to join
with others and form associations; (2) the right to join with
others in the pursuit of other
constitutional rights; and (3)
the right to join with others to
meet on more equal terms the
power and strength of other
groups or entities. In the
domain of labour relations, s.
2(d) guaranteed the right of
employees to meaningfully
associate in the pursuit of collective workplace goals; this
guarantee included a right to
collective bargaining, a right
which guaranteed a process
rather than an outcome or
access to a particular model of
labour relations. What was
required to permit meaningful
collective bargaining varied
with the industry culture and
workplace in question; the
required analysis was contextual. In the context of the current RCMP labour relations
scheme, the flaws in the SRRP
process did not permit meaningful collective bargaining and
were inconsistent with 2(d);
the SRRP process failed to
respect RCMP members’ freedom of association in both its
purpose and effects. The purpose of the exclusion in s. 2(1)
of the PSLRA also substantially
interfered with RCMP members’ freedom of association,
however this conclusion did not
require Parliament to include
the RCMP in the PSLRA
scheme. It remained open to
the federal government to
explore other collective bargaining processes that could
better address the specific context in which members of the
RCMP discharge their duties.
Mounted Police Association of
Ontario v. Canada (Attorney General), [2015] S.C.J. No. 1, Supreme
Court of Canada, McLachlin C.J. and
LeBel, Abella, Rothstein, Cromwell,
Karakatsanis and Wagner JJ., January 16, 2015. Digest No. 3437-010
Professional
Responsibility
Self-governing
professions
Discipline of members - Hearing Costs - Appeal - Professions Health care
Appeal by a psychologist from
the refusal of the disciplinary
committee of the College of
Psychologists to award costs in a
disciplinary hearing. The appellant was a licensed psychologist
who contributed to the development of the Worksafe NB’s policy
on stress claims. In January
2009, Worksafe provided the
appellant with a file of one of its
claimants and requested that he
provide advice about whether the
claimant met the criteria for a
stress-related
compensation
claim. After the claimant learned
about the content of the appellant’s opinion, he commenced an
action against the appellant and
others. He also filed a complaint
against the appellant with the
College alleging, among other
things, that the appellant diagnosed him without having met
him. The complaint was referred
to the College’s disciplinary committee. The disciplinary committee dismissed the complaint finding that the appellant was not
guilty of professional misconduct. The appellant requested the
opportunity to make representations on the issue of costs, but
was denied on the basis that the
disciplinary committee was functus officio having rendered a final
decision. The appellant sought
judicial review of the committee’s
decision on the issue of costs. The
court found that it had no jurisdiction to hear the matter and
that it was the Court of Appeal
that had jurisdiction.
appropriate standard of review
was correctness given the broad
statutory right of appeal, the
lack of a privative clause and
the nature of the issue, being
the application of the doctrine
of functus officio. No final decision was reached with respect
to costs by the disciplinary
committee. Despite the process
outlined in s. 16(6) of the College of Psychologists Act, the
Committee did not turn its
mind to the issue of whether
the proceedings were warranted and the consequent possibility of costs. Section 16(6)
did not require the appellant to
raise the issue of costs during
the hearing, as it could not be
engaged until after a decision
to dismiss the allegations of
misconduct had been reached.
Since the matter of costs was
not addressed by the disciplinary committee, as contemplated
by s. 16(6) of the Act, the doctrine of functus officio could
not apply to foreclose the
“reopening” of a final decision,
no final decision with respect to
costs having been made.
Fecteau v. College of Psychologists
of New Brunswick, [2014] N.B.J. No.
320, New Brunswick Court of
Appeal, A. Deschênes, B.R. Bell and
K.A. Quigg JJ.A., December 18, 2014.
Digest No. 3437-011
Real Property
Law
Sale of land
Agreement of purchase and sale Terms - Express terms - Implied terms
Appeal by the purchaser from the
dismissal of motion for partial
summary judgment declaring the
vendor liable for breach of contract and cross-appeal by the
vendor from the dismissal of its
claim to rectification of the agreement of purchase and sale. The
vendor owned two adjoining
properties in Burlington, “Blue
Water” and “Avondale”. In order to
attain the highest price and for tax
planning purposes, the vendor
wished to sell the two properties
together, with much of the purchase price allocated to Avondale.
The purchaser submitted offers
for the two properties. The offers
included the standard form agreement and two pages of additional
provisions. One of the provisions
was that the sale of each property
was conditional upon the sale of
the adjacent property. Following a
series of offers and counter-offers,
the purchaser revised the text of
the clause pertaining to the sale of
the adjacent property to provide
that the sale of Blue Water was
not conditional on the sale of
Avondale. The change was not
black-lined or otherwise drawn to
THE LAWYERS WEEKLY
19
Digest
the vendor’s attention. No change
was made to the corresponding
clause in the Avondale offer. The
vendor accepted the offers. The
sale price for Blue Water was $1
million, which was less than what
the vendor had paid for the property. The price of Avondale was
$4.5 million. The purchaser’s
solicitor gave notice to the vendor’s solicitor, by fax, purporting to
waive conditions to the purchaser’s benefit and seeking an extension of time for the waiver of conditions with respect to its purchase
of Avondale. Although the purchaser was advised that he had to
deliver the waiver to Blue Water,
he did not deliver the waiver to
the vendor personally. When the
vendor learned of the mistake in
the agreement, that the sale of
Blue Water was not conditional
upon the sale of Avondale, he terminated the agreement, relying
on the purchaser’s failure to give
notice waiving the conditions
within the required time period in
the manner required by the agreement. The purchaser sued for
specific performance or damages
for breach of contract. The vendor
counter-claimed for a judgment
rectifying the agreement and a
declaration that the agreement of
purchase and sale for Blue Water
and Avondale were both null and
void. The purchaser brought a
motion for partial summary judgment declaring the vendor liable
for breach of the agreement. The
motion judge declared the agreement unenforceable and dismissed the purchaser’s motion.
He found that the agreement was
clear that notice should have been
delivered to the vendor personally
and the purchaser did not deliver
its notice personally. The motion
judge also concluded that the
vendor was not entitled to rectification of the agreement. The purchaser appealed the dismissal of
its motion for summary judgment
for a declaration of breach of contract. The vendor cross-appealed,
asking that if the purchaser’s
appeal was allowed, all issues,
including his claim to rectification, be sent to trial.
HELD: Appeal dismissed. Waiver
of the conditions was not delivered
to the vendor personally as required
by the agreement. Delivery of the
notice by fax to the vendor’s solicitor was not personal notice as no
fax number was specified in the
agreement for the purpose of
notice. There was no evidence that
the notice was delivered to Blue
Water. There was no basis for interfering with the motion judge’s conclusion that other notice provisions
should not be implied. The agreement contained an entire agreement clause. The evidence in the
record did not establish waiver or
amendment of the agreement by
post-agreement conduct. The parties complied with the other, different, notice requirements and the
purchaser
was
specifically
instructed by his lawyer to deliver
notice personally. The doctrine of
promissory estoppel did not preclude the vendor from requiring
notice to him that the purchaser
waived the conditions. As the purchaser knew that it was important
to the vendor that the properties be
sold together and its conduct was
hard and pointed, the purchaser’s
past record in the transaction was
sufficient to deny relief on this
equitable basis. As the appeal was
dismissed, there was no reason to
address the cross-appeal.
High Tower Homes Corp. v. Stevens, [2014] O.J. No. 6109, Ontario
Court of Appeal, A. Hoy A.C.J.O.,
G.J. Epstein and C.W. Hourigan
JJ.A., December 18, 2014. Digest
No. 3437-012
Transportation
Law
Motor vehicles and
highway traffic
Liability - Speeding and radar - Signs
and posted speed limits - Photo radar
Application by the accused,
Sweryda, for leave to appeal a summary conviction appeal decision
affirming his conviction for speeding. The accused was convicted of
speeding based on photo radar
images taken pursuant to statutory
and regulatory provisions permitting the use of photo radar in playground zones. The officer operating
the photo radar was located
between two traffic playground
signs facing the eastbound and
westbound directions of traffic. The
accused turned onto the roadway
from a northbound street located
in between the two signs. He submitted that the absence of signage
on the intersecting northbound
street meant that the use of the
photo radar equipment that
recorded his speed was unauthorized, and that the photographs
were not admissible evidence. The
Justice of the Peace found that the
equipment was properly deployed
pursuant to the Regulation, as it
was situated in between the two
playground zone signs. The conviction was affirmed on appeal. The
accused sought leave to appeal on
the issue of whether the summary
conviction appeal judge incorrectly
interpreted the Regulation with
respect to where approved traffic
control devices were to be located
to establish a playground zone.
HELD: Application dismissed. The
summary conviction appeal judge
correctly described the issue as
one of statutory interpretation
reviewable on a standard of correctness. The effect of the Regulation was that a playground zone
was a length of roadway adjacent
to a playground created by the
location of traffic control devices
at the beginning of the zone facing
each direction of traffic entering
the zone. No reference was made
to signage on any streets other
than the roadway that was adjoining or adjacent to the playground.
The appeal judge correctly concluded that traffic control devices
were not required on intersecting
streets. It followed that the playground signs complied with the
Regulation to permit the use of
photo radar equipment at the
location of the offence. In addition, this was not an exceptional
case or question of law that was
the subject of conflicting lower
court decisions. The circumstances surrounding the offence
were not compelling.
R. v. Sweryda, [2014] M.J. No. 342,
Manitoba Court of Appeal, B.M.
Hamilton J.A., December 15, 2014.
Digest No. 3437-013
Workplace
Health, Safety &
Compensation
Law
Workers’ compensation
Benefits - Entitlement to benefits Causation - Compensability of injuries
- Industrial, occupational or
environmental disease - Appeals and
judicial review - Jurisdiction to review
Appeal by three workers from a
decision allowing an application
for judicial review from a reconsideration decision of the Workers’
Compensation Appeal Tribunal
affirming the original decision that
their breast cancer was workrelated and therefore compensable.
The three appellants worked for
the Health Authority at the same
laboratory hospital. They all suffered from breast cancer and
claimed compensation benefits.
The Tribunal held that their cancers were occupational diseases
due to the nature of their employment. The Tribunal’s three original
decisions were issued in December
2010. Three reconsideration decisions issued in December 2011
were substantially identical to the
original decisions. In the original
decisions, expert evidence was
adduced concerning the etiology of
the respondents’ breast cancers.
The evidence was comprised of
three reports prepared by the
Occupational Health and Safety
Agency for Healthcare (OHSAH),
a review of the OHSAH final report
by a specialist in occupational
medicine, Beach, and an opinion of
a WCA medical advisor. Among
other things, the expert evidence
considered the possibility of a cancer cluster at the hospital laboratory where the respondents worked
and found no causative significance
concerning the exposures experienced by the respondents in the
workplace. Nonetheless, the Tribunal found sufficient positive evidence to establish a causal link
between the respondents’ employment and their breast cancers. The
respondent sought judicial review
of the Tribunal’s decision arguing
that the Tribunal’s finding that the
cancers were occupational diseases
was made without evidentiary
basis and was therefore patently
unreasonable. The Court allowed
the application for judicial review
finding that the Tribunal’s decision
was unreasonable, as there was no
evidence to support a finding of
causation. The Court found that
the Tribunal ignored the non-contradicted expert evidence that there
was no evidence of workplace factors, in favour of its own expertise
or common sense, which rendered
the decision unreasonable. On
appeal, the Court requested submissions as to whether the Tribunal had jurisdiction to reconsider
its own decisions and, if such jurisdiction existed, the correct standard of review to be applied on a
reconsideration. It also sought submissions on whether the Tribunal
at large or only the panel hearing
an appeal had the authority to
reopen a hearing to correct a jurisdictional error.
HELD: Appeal dismissed. The Tribunal’s decision was openly, clearly
and evidentially unreasonable and
by definition patently unreasonable. There was no positive evidence to support the Tribunal’s
finding of causation. The only support for the original decision was
the statistical anomaly, which was
not a sustainable basis for the decision. The reconsideration decision
was set aside because the Tribunal
at large did not have jurisdiction to
review the decision of a panel
entrusted with an appeal to determine whether it was patently
unreasonable. Once an administrative tribunal issued a decision it
was functus officio, subject to a
limited right to correct clerical
errors in its decision or to reopen
proceedings to correct errors of
jurisdiction in order to undertake
the mandate given to the tribunal
by legislation.
Fraser Health Authority v. Workers’
Compensation Appeal Tribunal,
[2014] B.C.J. No. 3111, British Columbia Court of Appeal, M.V. Newbury, E.C. Chiasson, S.D. Frankel, E.A.
Bennett and R. Goepel JJ.A., December 18, 2014. Digest No. 3437-014
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20
• FEBRUARY 13, 2015
THE LAWYERS WEEKLY
Business & Careers
DANLEAP / ISTOCKPHOTO.COM
What to do when you are the problem
Understanding that you are difficult is the first step
JORDAN RODNEY
“A
re you really wearing that to the client
meeting?” “Why are you always so unprepared for our budget discussions?”
Difficult conversations may put you out of your comfort zone. They may be awkward and even embarrassing at times. They may be the most delicate conversations to have, but are often necessary. Typically,
these conversations take place face-to-face, leaving
parties without the advent of modern-day technological shields such as e-mails and text messages.
They can be emotional conversations about sensitive
topics occurring at work, such as employee performance or personality conflicts, or topics of a more
personal nature that may have an impact on the
workplace (e.g., hygiene, addiction or ethics).
At times, though, these conversations are simply difficult because of the particular individual involved. A
person participating in such a conversation may feel that
the other party is the problem. Have you experienced
this? If so, have you ever stopped to think that perhaps
the other person is not the one making the conversation
difficult, but rather, you are?
There are various reasons why you may in fact be the
problem. You may be a difficult person to speak to in the
workplace due to your management style, tone, how you
conduct yourself in meetings, how comfortable you are
around others, or even something you cannot quite put
your finger on. Ultimately, determining the specific reason is not as critical. There is always room for personal
growth and development. Are you are a person who
cares to improve upon your behaviour? If not, maybe the
following study will change your mind.
The Gallup organization recently found that 71 per cent
of people who left their company said it was because of
their direct manager, not because of their wages or the
actual job they were performing. Now take a moment to
imagine where those companies would be if those employees believed they were working for better leaders. There is
no doubt that a leader in an organization holds an
important position and it should be a given that workplaces need admirable leaders. Organizations with a
strong network of respected leaders cultivate a positive
work environment whereby employees are highly engaged
and productive.
If you care about your organization and its continued
success, you should focus on how to improve your own
individual leadership style. This is challenging for any
employee and even more challenging if you are a difficult person to work with.
It takes all kinds
A wide array of personality types can make difficult
conversations even more challenging. Knowing your
own personality may help you identify yourself as one
of the types, or perhaps identify others and strategize
how to relate best to their unique needs.
Are you the “exploder?” Do you jump to react to
situations at full volume, and often regret your conduct afterwards because you feel you lost your cool?
Are you a “staller,” taking on every task you think
you can handle and then leaving them incomplete for
someone else to come clean up your messes?
Are you a “know-it-all,” who claims to be an expert
on any and all subject matters to the point of berating
or belittling others you feel may be less informed on
the topic?
Or, even more forceful, a “Sherman tank” who will
attack and bulldoze anyone in their paths, leaving
their opponents feeling powerless.
Is it possible you are a “complainer” who finds fault
with everything? There may just be no pleasing you,
as you rush to gripe and groan about anything and
everything you can and constantly assign blame to
others.
Or perhaps you may even be the quietest of all, the
“clam.” The “clam” is only capable of providing oneword, noncommittal answers thus making dialogue
nearly impossible.
So how do you know if you are one of these difficult
people? The key is self-awareness. The more you
know about yourself, your emotional triggers and how
to regulate them, the easier it will be to make the
necessary improvements.
Personality, Page 21
THE LAWYERS WEEKLY
21
Business & Careers
Personality: Changing behaviour is no easy task
Know thyself
If you already know that you may be a difficult individual in the workplace, you are
a step ahead. Knowing oneself includes
knowing your strengths, your “hot buttons” (i.e. the things that others do that
drive you crazy) and your areas for development. Greater self-awareness is foundational for your workplace behaviour so
that you can lead with your strengths.
It is important to note that you are
always more than the image you present.
The entirety of your personality is fashioned by a variety of elements, as seen
through the Johari Window model. Only
one portion of your personality is your
public image. The other elements include
perceptions that others have of you that
you may not be aware of (i.e. blind spots),
parts of your personality not publicly visible that others may not be aware of (i.e.
hidden), and elements of your personality
unknown to both yourself and others.
In order to truly develop, you need to be
able to uncover your “blind spots” — these
are areas of your personality that others
see but for some reason you do not. These
can be visible aspects of your personality
or deep-rooted issues you never knew
existed. Blind spots may be difficult and
often painful to face head-on, but acknowledging them will create an enhanced selfawareness, which will only make you a
more effective leader at work.
Tips and tricks
If you realize that you may be a difficult person at work, there are ways to overcome it.
The first key is to keep an open mind.
Understanding and eventually altering one’s
behaviour is no simple feat; it is a process
that requires patience and commitment.
Being open to feedback from others and
asking for it with an open mind will only
contribute to this process.
Remember to plan ahead. It is necessary
to recognize and be aware of your words and
actions before they occur. Before entering a
difficult conversation, consider the relationship you have with the other party and the
one you wish to preserve after the conversa-
JUDICIAL VACANCY
ONTARIO COURT OF JUSTICE
TORONTO
The Judicial Appointments Advisory Committee advises the Attorney General of
Ontario on the appointment of Judges to the Ontario Court of Justice, and invites
applications for a judicial position in Toronto.
If you care about your
organization and its
continued success, you
should focus on how
to improve your own
individual leadership style.
Jordan Rodney
Rodney Employment Law
tion. How do you want the other person to
view you after the conversation?
Make efforts to be conscious of your
actions. In a difficult conversation, monitor
your words, tone of voice, body language
and temper carefully to ensure the situation
does not get out of hand. If the conversation
starts to derail, remember to try to continue
the dialogue to get it “back on track.”
Finally, be considerate of those around
you. Workplaces are made up of an array of
personalities and perspectives. Reminding
yourself to be respectful of others will go a
long way.
Practicing these tips will help you grow as
an individual and only increase your chances of maintaining positive relationships
with those around you.
It is possible for a difficult person to be
more pleasant at work and someone that
others want to be around. Learning about
yourself is a life-long journey. However,
once you become aware of your development areas, you can focus on turning those
blind spots into areas of strength. The
change you notice in your workplace will be
worth all the extra effort.
Jordan Rodney is the founder of Rodney
Employment Law and the president of
MaxPeoplePerform. He is an employment
lawyer and human resources professional
with 20 years of experience, and leads a CPA
Ontario course on effectively managing
challenging employees. E-mail: jordan@
maxpeopleperform.com.
POSTE À POURVOIR AU SEIN DE LA MAGISTRATURE
COUR DE JUSTICE DE L’ONTARIO
TORONTO
Le Comité consultatif sur les nominations à la magistrature conseille le Procureur général
de l’Ontario sur les nominations de juges à la Cour de justice de l’Ontario et invite les
personnes intéressées à présenter leur demande au poste de juge à Toronto.
This appointment, while primarily a family law position, may also involve
presiding over criminal law matters. This position also involves travel within
the region as assigned by the Regional Senior Justice and/or the Chief Justice.
La personne nommée dans ce poste, qui est lié principalement au domaine du droit
familial, peut aussi devoir présider des affaires criminelles. Le poste exige en outre
des déplacements dans la région selon ce que détermine le juge principal régional
ou le juge en chef.
The minimum requirement to apply to be a Judge in the Ontario Court of Justice is
ten years completed membership as a barrister and solicitor at the Bar of one of the
Provinces or Territories of Canada.
Pour pouvoir poser sa candidature à un poste de juge à la Cour de justice de l’Ontario, il
faut, comme condition minimale, avoir été inscrit comme avocat-plaidant et procureur au
barreau de l’une des provinces ou de l’un des territoires du Canada pendant au moins
dix ans.
All candidates must apply either by submitting 14 copies of the current (April 2014)
completed Judicial Candidate Information Form in the first instance or by a short
letter (14 copies) if the current form has been submitted within the previous 12
months. Should you wish to change any information in your application, you
must send in 14 copies of a fully revised Judicial Candidate Information Form.
Tous les candidats et candidates doivent poser leur candidature soit, dans le premier cas,
en présentant le Formulaire de renseignements sur le candidat/la candidate à la
magistrature courant (avril 2014), soit en envoyant une courte lettre (en 14 exemplaires)
si le formulaire courant a été présenté au cours des 12 mois précédents. En cas de
changements à apporter à un formulaire déjà envoyé, le candidat ou la candidate
doit envoyer à nouveau 14 exemplaires du formulaire de renseignements corrigé.
If you wish to apply and need a current Judicial Candidate Information Form, or if you
would like further information, please contact:
Si vous voulez poser votre candidature et que vous avez besoin d’un Formulaire de
renseignements sur le candidat/la candidate à la magistrature courant, ou encore si vous
souhaitez obtenir de plus amples renseignements, veuillez communiquer avec :
Judicial Appointments Advisory Committee
Tel: (416) 326-4060 Fax: (416) 212-7316
Website: www.ontariocourts.ca/ocj/jaac/
All applications, either sent by courier, mail or hand delivery, must be sent to:
Judicial Appointments Advisory Committee
c/o Ministry of Government Services Mail Delivery
77 Wellesley Street West, Room M2B-88
Macdonald Block, Queen’s Park
Toronto, Ontario, M7A 1N3
Applications must be on the current prescribed form and must be
TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on
Friday, March 6, 2015. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES
OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only
if 14 copies of the application or letter are sent concurrently by overnight
courier. Applications received after this date WILL NOT be considered.
The Judiciary of the Ontario Court of Justice should reasonably reflect the
diversity of the population it serves. Applications from members of equalityseeking groups are encouraged.
Comité consultatif sur les nominations à la magistrature
Téléphone : (416) 326-4060 Télécopieur : (416) 212-7316
Site Web : www.ontariocourts.ca/ocj/fr/jaac/
Toutes les demandes envoyées par service de messagerie, par la poste ou en main propre
doivent être soumises à l’adresse suivante :
Comité consultatif sur les nominations à la magistrature
a/s Ministère des Services gouvernementaux - Services de
distribution du courrier
77, rue Wellesley Ouest, salle M2B-88
Édifice Macdonald, Queen’s Park
Toronto (Ontario) M7A 1N3
Les demandes de candidature doivent être déposées par l’entremise du formulaire
prescrit courant et DACTYLOGRAPHIÉES ou CRÉÉES PAR ORDINATEUR et reçues
au plus tard à 16 h 30 le vendredi 6 mars 2015. LES CANDIDATS ET CANDIDATES
DOIVENT FOURNIR 14 EXEMPLAIRES DE LEUR FORMULAIRE OU DE LEUR
LETTRE DE CANDIDATURE. Une télécopie ne sera acceptée que si 14 exemplaires
du formulaire ou de la lettre de candidature sont également envoyés par service de
messagerie de 24 heures. On n’accordera AUCUNE considération aux candidatures
reçues après cette date.
La magistrature provinciale doit refléter raisonnablement la diversité de la
population qu’elle sert. Nous encourageons les membres de groupes de promotion
de l’égalité à présenter une demande.
22
THE LAWYERS WEEKLY
Business & Careers
Overcoming the fear of starting your own practice
LEENA YOUSEFI
aw school graduates can’t be
L
blamed for reading big firm
interview books to lock down
their first articling job. Like the
vast majority in the same position, they probably gave
answers that never talked about
who they were, what ideas they
had and where they would see
themselves in the future.
I had a big firm interview
once. I remember my interviewer asking me about a pet
peeve. I said guys who do not
pay on the first date. I never got
the job. Maybe I could have said
my pet peeve was people who
Butterworths
didn’t work hard. But that
wasn’t my answer.
Law graduates often have no
choice but to try and appeal to
the masses. But after a few years
of experience, what is holding
them back from actually collecting the money they earn,
rather than having to give 40
per cent to 70 per cent of it to
their firm? What’s holding them
back from being their own boss,
calling their own shots, being
paid handsomely and following
their own vision, rather than
someone else’s?
The most obvious answer is risk.
After years of being taught to
avoid mistakes and minimize
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Inexperience
It’s not always true that a young
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Law societies have rules that
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THE LAWYERS WEEKLY
23
News
Ahead: Counsel sees boost for charter challenge cases
dation of the strike restrictions
in PSESA therefore provides a
boost to four ongoing Charter
challenges in Ontario Superior
Court to similar legislation: the
2013 federal budget implementation bill (C-4) which gave
Ottawa unfettered powers to
designate federal public servants as essential and bar them
from striking, and separate
laws legislating back to work
Canada Post employees and Air
Canada pilots and machinists.
“The unions should be much
more optimistic about the
chance of success at trial than
before the SFL decision because
there is now a constitutionally
recognized right to strike,”
Craig Bavis of Vancouver’s Victory Square Law Office told The
Lawyers Weekly, adding that
SFL “gives every union the ability to challenge any restriction
on the right to strike, and
although this comes up in the
context of essential service
legislation, I think the most
dramatic application is going to
be in giving unions the ability
to hold governments accountable when they implement
back-to-work legislation which
has the effect of stopping a
strike when the unions are
effectively putting pressure on
an employer.”
Bavis was co-counsel with
Rick Engel and Peter Barnacle
for the appellant Saskatchewan
Federation of Labour and some
two dozen unions in the province whose Charter challenge
succeeded at trial, but was dismissed by the Saskatchewan
Court of Appeal on the basis
that the Supreme Court’s 1987
Labour Trilogy ([1987] S.C.J.
No. 10) was binding.
However, by overruling the
Labour Trilogy’s key holding
that s. 2(d) does not protect the
right to strike, the Supreme
Court’s majority has removed
for the most part a previously
insurmountable hurdle for
unions contesting essential services and back-to-work legislation. The main constitutional
battleground now shifts to disputing whether governments/
employers have met their
burden, under s. 1 of the Charter, to demonstrate that their
infringements on the right to
strike are justified and have
impaired the right to strike as
little as reasonably possible.
Counsel say SFL has become
the cornerstone of what lawyers
are calling the new Labour Trilogy on collective bargaining
handed down by the court last
month, including Mounted
Police Association of Ontario v.
Canada (Attorney General)
[2015] S.C.J. No. 1, and Mere-
An Air Canada jet is seen at Pearson International Airport in Toronto. The Supreme Court of Canada’s
affirmation of the right to strike is seen as a major boost for labour in the battle to push back against federal
essential services legislation, and related laws which forced Air Canada pilots and machinists, as well as Canada
Post employees, back to work. tomeng / iStockphoto.com
dith v. Canada (A.G.) [2015]
S.C.J. No. 2.
SFL breaks new legal ground by:
nGiving Charter protection to
the right to strike in aid of collective bargaining. “The conclusion that the right to strike is an
essential part of a meaningful
collective bargaining process in
our system of labour relations is
supported by history, by jurisprudence, and by Canada’s
international
obligations,”
wrote Justice Abella. “Clearly
the arc bends increasingly
towards workplace justice.”
nAdopting “substantial interference with collective bargaining” as the test for infringement of the right to strike.
nOutlining the kinds of measures governments/employers can
take to ensure that any restrictions they impose on the right to
strike minimally impair s. 2(d),
and thus can be upheld as reasonable and demonstrably justified under s. 1 of the Charter.
nSuggesting in obiter dicta a
restrictive view of what services
will qualify as “essential” — i.e.
“services the interruption of
which would endanger the life,
personal safety or health of the
whole or part of the population.”
“It is a landmark case — they’ve
finally directly overruled the
Labour Trilogy,” said Graeme
Mitchell, counsel for the
respondent Saskatchewan government. “I think what [governments] are all grappling with
now, or are going to have to in
the near future, is: ‘How much
scope is there really for essential services legislation now?’ ”
Mitchell suggested the major-
ity seems to take a narrow view
of which services are “essential,” which could pose difficulty
in the context of services provided exclusively by governments, “and when they aren’t
working, people don’t have
access to services.”
Justice Abella held that PSESA
“substantially interferes with collective bargaining,” and thus
as part of the bargaining process.
Maintaining essential public
services is “self-evidently” a
pressing and substantial objective, as the unions acknowledged, she said.
But the law goes “beyond
what is reasonably required to
ensure the uninterrupted delivery of essential services during
a strike” and thus could not be
upheld as reasonable and
demonstrably justified under. 1.
Paul Cavalluzzo of Toronto’s
Cavalluzzo Shilton, said the court
has given “a very robust” interpretation to the Charter’s s. 2(d).
“They fully appreciate that
the whole point of freedom of
association is to give citizens
the right to coalesce, and to
associate, in order to deal with
more powerful organizations
like governments and employers, and…that there is a very
important equality aspect to
Half of the legal issue [i.e. whether unions have
a right to strike] has now been resolved in our
favour, so we’re going to push these cases on [to
trial] quickly…I’m looking forward to the success
of these cases.
Paul Cavalluzzo
Cavalluzzo Shilton
infringes the Charter’s s. 2(d)
guarantee of freedom of association, because it prevents employees deemed essential from
engaging in any work stoppages
freedom of association,” said
Cavalluzzo, who represents the
intervener Canadian Union of
Postal Workers, which is
attacking in court a 2011 fed-
eral back-to-work law terminating a postal strike. He also is
counsel for the intervener
International Association of
Machinists and Aerospace
Workers in its ongoing challenge to back-to-work legislation at Air Canada in 2012.
SFL “is going to have a significant impact on our two challenges,” he predicted. “Half of the
legal issue [i.e. whether unions
have a right to strike] has now
been resolved in our favour, so
we’re going to push these cases
on [to trial] quickly…I’m looking forward to the success of
these cases.”
The Public Service Alliance of
Canada (one of 25 interveners
in SFL) launched a Charter
attack in Ontario Superior
Court on Bill C-4 last year. In
light of SFL, PSAC called on
Ottawa to repeal the controversial measures federal unions
see as gutting collective bargaining. They include giving
the federal government an
unfettered right to determine
what constitutes an essential
service and which workers perform essential services, and
also to require those employees
designated “essential” to perform all of the duties of their
position during work stoppages, not just those that are
considered essential (In SFL,
Justice Abella commented that
requiring employees to perform
non-essential work during a
strike action “undercuts their
ability to participate meaningfully in, and influence the process of, pursuing collective
workplace goals.”)
PSAC’s counsel, Andrew Raven
of Ottawa’s Ravenlaw, told The
Lawyers Weekly all the bargaining agents are considering
the implications of SFL, including next steps with respect to
their Charter challenge.
“I think the Supreme Court
ruling in the SFL case is so clear
and so strong, and the similarities between C-4 and the Saskatchewan law are so apparent,
that the outcome [of a Charter
challenge] should logically be
the same,” Raven said.
In a scathing dissent, Justices
Marshall Rothstein and Richard
Wagner accused the majority of
following their own policy preference by tipping “the balance
of power against employers and
the public” and of improperly
deciding the “delicate and political balance of interests in
labour relations” which is properly reserved to legislators.
“Employers and the public are
equally as entitled to justice as
employees — true workplace
justice looks at the interests of
all implicated parties,” Justice
Rothstein wrote.
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The Lawyers Weekly - February 13, 2015

Transcription

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