Read more… or Read more right here… »

That all began to change in 2001 with a landmark case from the UK House of Lords known as Reynolds v. Times Newspapers2 A.C. 127. For the first time, English law recognized the special duty the media have in providing information to the public, and the chilling effect that the threat of defamation can have on fulfilling this duty. Newspapers might shy away from reporting on controversial issues of great public importance in the face of costly defamation settlements should some of the information turn out to be unreliable or inaccurate. As a result, the UK House of Lords created a new defence to defamation which would absolve the defendant of liability if the information published was done in the good faith fulfillment of journalistic duties.

The decision only makes sense. Unrestricted debate, discussion and access to information are central features of any democratic society. In today’s world, the media play a central, indeed, unparalleled role in this process, so it makes sense the law would provide them special latitude to ensure that role can be fulfilled without restriction. But it was not until 2007 that Canadian law turned its mind to this problem in the Ontario Court of Appeal decision of Cusson v. Quan. The case concerned an Ontario Provincial Police Officer named Cusson who volunteered himself to search the rubble of the World Trade Centre for survivors in the aftermath of 9/11 with his trusty pet pooch, “Ranger.” It turned out that Cusson was not a trained police K-9 handler and an Ottawa newspaper ran a series of stories on the fiasco that ensued with the New York Police Department. Cusson sued for defamation. In its decision, the Ontario Court of Appeal unequivocally affirmed the public interest responsible journalism defence, noting that “democracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those, such as police officers, who exercise power and authority in our society.”

Cusson v. Quan is awaiting hearing before the Supreme Court of Canada, but now before that can happen, the Ontario Court of Appeal has reaffirmed the defence in yet another case, Grant v. Torstar 2008 ONCA 796 (linked above). Likewise, judges in other jurisdictions are now looking to the Reynolds public interest responsible journalism defence as if it was a long-standing component of Canadian law. While of course there exists a possibility that the top court would reverse this groundswell among lower courts when it gets around to considering Cusson v. Quan, the support among courts for this new defence is almost unanimous. With the way things are going, by the time the SCC has anything to say about it, responsible journalism may already be old news.

« Hide it

Read more… or Read more right here… »

www.TheCourt.ca: Can you give us some insight as to how the Supreme Court Justices use the Library and what their role is in determining its direction?
MS: Research requests from judges tend to come to us indirectly, via their law clerks or their judicial assistants. I can say that the trend has been for questions to become broader: when questions come up in new or conflicting areas of law, we at the Library are being asked to help people find all kinds of information that may shed light on a case, and from many jurisdictions (Canada and foreign): I can assure people that the Court is interested in examining all the angles on a question.

There is a library committee with three judges on it that serves as a liaison between the judges of the Court and the Library. The committee is there to make sure that the Library serves the needs of the Court in terms of researching cases and rendering decisions. Through the committee, judges can tell us if they want any changes or new information products. For example, through the committee, judges asked the Library to create two new products on the Intranet: a monthly selection of judgments from various foreign supreme courts, and a constantly updated bibliography of articles on recently heard Supreme Court cases and upcoming appeals. That sort of thing.

www.TheCourt.ca: What are some of the rewards and challenges in your work as a reference librarian for the Supreme Court?
MS: [Regarding the challenges] we have to be very accurate and versatile, in both official languages. We often have to quickly get up to speed in areas of law with which we are not familiar, but that’s the nature of an appellate court. And we are asked, more frequently than I would have guessed, to track down obscure or hard-to-find material from outside Canada.

Rewards: constantly learning, walking into a beautiful building every morning, gaining the respect of very smart people on the inside, and getting people from the outside to quickly return my phone calls!

www.TheCourt.ca: Why did you start your blog, Library Boy?
MS: I had been reading blogs and about blogs in 2003-2004 and thought I should start one, originally as an experiment to see if I liked it and if I “had anything to say.” I use the blog to do two things: 1) archive material I find interesting and useful in librarianship or legal research, using it almost as a notebook so as not to forget things, and 2) attract other people’s attention to it.

I decided early on that I wanted it to have an informational tone. I don’t think I am neutral when it comes to values (I have posted a lot about access to information, government transparency, human rights resources, access to justice and so on, so you can guess where I am coming from). However, I try to avoid inserting any personal rants into my blog posts. For one thing, there are so many blogs out there with little else but biased ranting. I find those blogs dreadfully boring after a while. For another, I am identified on the blog as working for the Supreme Court of Canada and I am very aware of the necessity for restraint in tone and content.

As for the name “Library Boy,” since many people ask me: some friends liked to make fun of me when I would become too serious and start pontificating. They would say: “OK, we get it, you think you’re so smart, eh, Library Boy?” So, I adopted the name.

www.TheCourt.ca: Your blog is engaged with both legal and librarian professions. Who are your readers? Do they tend to come from one world more than the other?
MS: I get e-mail from both groups. But I do think most of my readers are librarians. No evidence, just a feeling.

www.TheCourt.ca: Your blog is updated very frequently. What is your motivation for taking the time to post every day? How do you find the material to post?
MS: I try to post as often as possible. There are so many interesting stories or resources out there. In terms of finding material, it is possible to subscribe to RSS feeds or to news release services from many different sources and publications in law and the library world: government departments, law reform commissions, law faculties, other law blogs, professional associations, etc. It is a question of identifying potential information sources and getting a good RSS reader.

www.TheCourt.ca: The past few years have seen a stunning increase in the number of law-related blogs. What do you think is the role of blogging in the legal world?
MS: I see two roles, depending on the nature of the blog that is being described. Some blogs are basically informational or newsy. Other blogs have been developing into a new kind of legal scholarship, something between news and academic commentary. I have posted about this on Library Boy, for example “Should Legal Blogs Be Seen As Scholarship?” (Dec. 18, 2007) - this second group is the most interesting to watch.

www.TheCourt.ca: Besides slaw.ca (for which you are a contributor) and TheCourt.ca, are there any other law-related blogs you read and would like to recommend?
MS: I like:

Jurist from the University of Pittsburgh
Law Librarian Blog
Canadian Forum for Social Justice
Internet News

TheCourt.ca would like to thank Michel-Adrien Sheppard for the interview.

« Hide it

Read more… or Read more right here… »

Additionally, the Court can summon foreign law to invalidate government legislation even if doing so means reversing a line of jurisprudence that it itself had developed. A recent case in point is Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, where the Supreme Court declared unconstitutional the Health and Social Services Delivery Improvement Act, citing that it was a violation of freedom of association under the Charter. The Supreme Court cast the right to collectively bargain (which is traditionally understood as an economic right and not a fundamental human right) as one of the rights guaranteed under freedom of association. In doing so, it went against twenty years of legal precedent that excluded collective bargaining from Charter protection.

The Court utilized international law as one of its pillars of support. In making its decision the Supreme Court made references to the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Labour Organization’s (ILO’s) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize. By using the above documents, the Supreme Court characterized the right to collectively bargain as a fundamental right, noting, for example, that international treaties such as the International Covenant on Civil and Political Rights state “[e]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.” (s.22(1)) The use of international treaties in this way helped the Supreme Court expand the scope of freedom of association in a way that invalidated government legislation.

Against the backdrop of the above examples, the implications of the Supreme Court’s use of foreign law appear to be twofold. Within a legal-political system that is widely seen as displaying the characteristics of judicial supremacy, the use of foreign law can, in some cases, aid the activist agenda of Canadian judges. It would be rare to find a better example of judicial activism than a case where a court invalidates a government law while simultaneously overturning a line of jurisprudence that it itself had developed. This is exactly what had occurred in the BC Health Services case, and as evidenced by the Court’s reasoning, foreign law played an important role its decision. Although it is impossible to read the minds of judges, such instances suggest that Canadian judges may be engaged in the “cherry picking” of foreign law as a way to counter and overturn domestic precedents. As a result, critics may be right in their proposition that the Supreme Court is increasingly adopting the role of policymaker.

The second implication carries a more positive connotation. Leaving aside value judgments on the merits of judicial activism, the Canadian courts have displayed a great openness in adopting new principles from foreign sources. Canadian society has always championed itself as being tolerant and open to foreign ideas, and it would follow that its legal institution would want to embrace this spirit as well. In an increasingly globalized world where local law often comes in contact with foreign and international law, courts have two options. One option is to close ranks and concentrate only on the national experience. The second option is to readily accept the transfer of legal ideas and the opportunities of transnational legal discourse. The Supreme Court of Canada appears to have adopted the latter option. This may, in turn, produce better or fairer legal solutions for the Canadian public. Whether the Court can achieve this without blatantly playing the role of policymaker remains to be seen.

« Hide it

Read more… or Read more right here… »

The Crown appealed this decision to the B.C. Court of Appeal. It was not in dispute whether the hearing to determine if informer privilege applied should have been held in camera. Rather, the issue raised was whether the judge erred in ruling that defence counsel could be present at the in camera hearing, held to determine whether the informant privilege was to apply. Further, the appellate court was asked to consider whether that ruling could be appealed under s. 37 of the CEA. The Crown argued that defence counsel’s presence at the in camera hearing would inevitably breach informer privilege, and that the judge had failed in her duty to protect this privilege. The defence countered, by submitting that, rather than having this inevitable effect, the impugned order was merely procedural in nature. As well, the defence believed that the Court of Appeal did not have jurisdiction under s. 37 to hear an appeal.

Majority

In Chief Justice Finch’s written reasons, with which Mr. Justice Donald concurred, he first addressed the Crown’s heavy reliance upon Named Person v. Vancouver Sun to support the position that counsel for the appellants should be excluded from the in camera informant hearing. In Named Person, the appellant was being sought for extradition. At trial, he applied for an order that the proceedings continue in camera, a request to which the Attorney General consented. An amicus curiae (friend of the court) was appointed during the in camera proceedings, and was provided with exhibits and documents. Counsel for the local media applied to review these documents and the extradition judge allowed that application.

The trial judge did not agree that Named Person supported the position that counsel for the appellants should be excluded from the in camerahearing, as that case contemplated whether or not the media should be present. The question of whether an accused or defence counsel should be present was not addressed because the context of this case was civil, not criminal like Virk. As well, as Justice Finch pointed out, it did not involve s. 37 of the CEA. He found that the trial judge was correct in finding Named Person to be irrelevant in the context of Virk.

On the basis of other, more relevant authorities, Justice Finch concluded that it was within the trial judge’s discretion to adopt the procedure she did in considering whether informer privilege existed. He looked to precedents that did consider s. 37, and found that s. 37 applications tended to afford the judge considerable latitude. A judge’s broad discretion on s. 37 applications was also indicated by the language of the section. For example, s. 37(6.1) allows the court to receive anything into evidence that is reliable and appropriate, even if it would otherwise not be admissible; as well, s. 37.3(1) allows a judge presiding at a criminal trial to make any order necessary to protect the right of an accused to a fair trial.

Turning to the second issue on appeal, namely whether or not there can even be an appeal from a ruling under the s. 37 provisions, Justice Finch first considered the meaning of the trial judge’s order. The Crown said that the order would inevitably result in the release of the informer’s identity, as any of his substantive evidence will lead to disclosure of information that may tend to identify him and breach the protective privilege. The Crown pointed to passages in the judge’s reasons as evidence that the order authorizes disclosure of confidential information; they argued that if the trial judge did not intend to allow defence counsel to hear information that might identify the confidential informant, she would not have required undertakings of non-disclosure from defence counsel.

Justice Finch argued that the purpose of the in camera hearing is to determine whether there is a confidential informer, and if so, whether he or she is protected by informer privilege. The trial judge said that she required further information (for instance, whether the witness even came to the police in confidence), because it was not readily apparent to her at that stage whether the privilege applied. Justice Finch, in light of the unanswered questions, doubted whether the order was one for disclosure.

Rather, he sided with defence counsel’s view that the order was procedural. Their argument was that the purpose of the in camera hearing was to determine whether there was any basis on which informer privilege can be asserted. Defence counsel should be present at such a proceeding because they are entitled to test whether, within that evidence, there is any foundation to the claim for informer privilege. They could inquire into the circumstances under which the privilege claim arose, and could assess the credibility of the witness called to justify the assertion of privilege. Justice Finch agreed with this interpretation, and stated that at the hearing stage, the judge did not have enough information to allow her to make an order authorizing, or prohibiting, disclosure.

Justice Finch went on to say that even if his interpretation was incorrect and it was, in fact, an order for disclosure of confidential information, it was still within the discretion granted by s. 37. As he stated earlier, that section permits the judge much discretion; he believed that it was clear from the trial judge’s reasoning that she was aware of the importance of informer privilege and the accused’s right to a fair trial. As well, s. 37.3 authorizes the judge to make any order necessary to protect the accused’s right to a fair trial. Therefore, even if the order was one for disclosure, it was made within the judge’s discretion.

Finally, Justice Finch found that the trial judge did not make any order under s. 37(4.1), (5) or (6), the only subsections from which an appeal may be taken. This means that there was no right of appeal in respect of the trial judge’s order. He ultimately dismissed the appeal on the ground that the appellate court had no jurisdiction to entertain it, though as his reasons demonstrate, several other factors were behind his decision.

Dissent

Madame Justice Ryan, on the other hand, disagreed with Justices Finch and Donald. She believed that the trial judge’s order actually did authorize disclosure under s. 37(4.1) of the CEA, and that the Crown’s appeal was properly brought to the Court of Appeal under s. 37.1(1). As well, she held that the trial judge erred by permitting defence counsel to be present during the privilege hearing.

Firstly, Justice Ryan concluded differently on the matter of the order’s effect. In her view, the trial judge actually did order disclosure to the defence on the condition that they provide undertakings not to reveal anything disclosed in the in camera hearing. The trial judge then adjourned the hearing to permit the Crown the opportunity to appeal her ruling. According to Justice Ryan, the trial judge’s own reasons support the conclusion that she ordered disclosure.

Her second, more involved argument dealt with the application of Named Person. She began by noting that informer privilege is a powerful protection that is only excepted when innocence is at stake. She alluded to Justice Sopinka’s ruling in R. v. Stinchcombe, [1991] 3 SCR 326 to demonstrate that the Crown’s disclosure obligations are highly important. But even in this seminal criminal procedure case, Sopinka J. recognized that full disclosure is limited when informer privilege is raised. Though information should be disclosed if it would impair the right of the accused to make full answer and defence, he noted that non-disclosure is justified by the law of privilege. After discussing Sopinka J.’s high regard for informer privilege, even in a criminal context, Justice Ryan characterized the question on this appeal as whether defence counsel should be present in an informer privilege hearing. She did not distinguish between civil and criminal procedures, like the majority. By characterizing the case in this way, Justice Ryan disagreed with Justices Finch and Donald that Named Person was not relevant to Virk.

On this issue, the defendants’ counsel, like the trial judge, argued that the procedure laid out in Named Person did not apply to Virk because the media were not parties and, unlike criminally accused persons, did not have the right to make full answer and defence. For this reason, the media did not have the right to attend the hearing, and this factual difference justified the majority view that Named Person was irrelevant to the issues presented by a criminal trial. Justice Ryan disagreed, and noted that there is only one exception to informer privilege: when innocence is at stake. There is no similar exception for the right to make full answer and defence, and for this reason, she would argue that Named Person did apply to the facts of Virk.

Justice Bastarache, in Named Person, described the procedure to be followed when the question of informer privilege arises. He noted that in criminal or quasi-criminal proceedings, if an individual discloses confidential informer status to the court, the proceedings should be adjourned and then continue in camera in order to determine if sufficient evidence exists to justify this status. When the judge is determining whether the privilege applies, third parties should not be admitted into the in camera proceedings. The only parties present, according to Bastarache J., should be the person who seeks the protection of the privilege and the Attorney General. This is because the only determination to be made at this point is whether the person is a confidential informer. There is no balancing of legal interests, and only these two parties can contribute to the determination. Bastarache J. points out that other parties aren’t only necessary, but they may actually be harmful; as the number of people at the hearing grows, so too does the risk of disclosure.

The trial judge’s concern that the defence counsel’s absence would prevent full argument influenced her decision to allow them access to the confidential informant hearing. However, Justice Ryan again looked to Bastarache J.’s reasoning in Named Person to undermine the trial judge’s decision; he suggested that the troubling, non-adversarial nature of such a hearing is alleviated with the appointment of an amicus curiae. This would have been a preferable option to that exercised by the trial judge in Virk. Since Justice Ryan held that Named Person should apply to Virk, Bastarache J.’s procedure would then apply. He specified that third parties (other than curii) should not be present during hearings to establish informers; as such, the trial judge erred by allowing the defence counsel to participate in the hearing.

Following this finding, Justice Ryan addressed the related question of whether the trial judge’s broad discretion permits the inclusion of defence counsel at this type of in camera hearing. But after conducting additional case analysis, she found that judicial discretion does not extend that far. While s. 37 of the CEA gives a trial judge the freedom to determine which type of hearing will be conducted and who may attend it when certain public interests are at issue, the centrepiece of informer privilege is the protection of the informer’s identity. Nothing in s. 37 can dilute that requirement, and the trial judge’s discretion is limited by the parameters prescribed by informer privilege.

Contrary to Justices Finch and Donald, Justice Ryan agreed with the Crown that the trial judge erred in permitting defence counsel to be present during the hearing on informer privilege. She would have set aside the order of the trial judge. After examining both the majority and dissenting decisions, it is clear that their main point of departure was whether Named Person applied to a criminal case. I think that Justice Ryan’s argument was more persuasive on this issue, given that the right to make a full answer and defence is not an exception to informant privilege, and that Justice Bastararche’s in camera hearing procedure can apply in criminal contexts. Since the interpretation and application of Named Person is one of the issues facing the SCC, it seems highly possible that this decision may be overturned.

« Hide it

Read more… or Read more right here… »

In reaching its decision, the Agency determined that “the additional fares that are charged by Air Canada and WestJet in respect of certain persons with disabilities who require additional seating to accommodate their disabilities … represent an economic disadvantage which effectively limits travel opportunities in respect of employment, education, leisure, medical care and emergencies available to persons who require additional seating to travel by air.”

Section 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, (the “CTA”) vests the Agency with the authority to concern itself with the existence of “an undue obstacle to the mobility of persons with disabilities.” In determining the appropriate evidentiary burden for establishing an “undue obstacle”, the Agency endorsed a “Charter values” approach, positing that s. 172(1) should be interpreted in a manner broadly analogous to s. 15(1) of the Canadian Charter of Rights and Freedoms . The Agency accordingly looked to the “undue obstacle” set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, which placed the burden on the respondent to establish on a balance of probabilities that the discrimination in question:

• is rationally connected to a legitimate objective;
• was adopted by the respondent with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and
• is reasonably necessary for the accomplishment of its objective, such that it is impossible for the respondent to accommodate the applicant without imposing undue hardship on the respondent.

Requiring airlines to accommodate persons with disabilities by providing them with an extra seat, was found not to constitute an undue hardship. Drawing on the Supreme Court of Canada decision in Council of Canadians with Disabilities v. Via Rail Canada Inc [2007] 1 S.C.R. 650, citing British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 the court noted that while the costs associated with the elimination of barriers to access were legitimate considerations, tribunals needed to be cautious of “putting too low a value on accommodating the disabled.” In the Agency’s view, (based largely on the evidence submitted by the Applicant), the total cost of implementing the proposed policy was likely to translate into an increase of roughly 77 cents for Air Canada flights, and 44 cents for West Jet flights.

In view of the fact that the evidence before it was subject to interpretation, the Agency left open a window for reversing its decision. “Section 32 of the CTA” it explained, “provides the Agency with the power to review a decision when there is sufficient justification to do so.” “Such a change in circumstances could arise” the agency explained, “if the parties’ experience with implementing and administering the policy required by the Decision is significantly different from the evidence and its interpretation which formed the basis of this Decision.”

It remains to be seen whether, and to what extent, the airlines will comply with the Decision, or whether they will attempt to seek recourse under s. 32 of the Act. Whatever the case, the Supreme Courts show of deference to the decision of the Canadian Transport Agency appears to be most reasonable.

« Hide it

Read more… or Read more right here… »

Judgment
Sproule failed to attend the trial, and thus, his pleadings were struck and judgment awarded against him. The case advanced between Ms. Evans and the Police Board.

Chapnik J. found that Ms. Evans fell short of proving that Sproule stood in a fiduciary relationship with her and that he breached his trust obligations by assault against her. The claim for fiduciary duty, the judge explained, was not properly pleaded in this case.

Ms. Evans’ claim in negligence also failed. Less than a month prior to the assault against Ms. Evans, Sproule was on patrol duty with another officer when they stopped a vehicle driven by a young woman. The officer witnessed an inappropriate, sexually-charged exchange between her and Sproule. However, the officer did not disclose the incident to his supervisor until after the assault against Ms. Evans. Had the officer reported the incident promptly and the Board failed to take proper action, the claim for negligence may have succeeded. However, as he had not, it could not be held that the Board acted negligently.

Chapnik J., however, did find that the Board was vicariously liable for the wrongful conduct of Sproule. His conduct was committed in the course of his employment with the Board, the opportunity to do what he did was directly attributable to his employment and the power and authority conferred on him as a police constable.

The judge awarded Ms. Evans $215 000 in damages, $25 000 in punitive damages against Sproule only, plus costs on a substantial indemnity basis.

Vicarious Liability
The Supreme Court established the test for finding vicarious liability in Bazley: where the employee’s wrongful conduct is sufficiently related to conduct authorized by the employer, the employer may justly be held vicariously liable despite an absence of any fault on the part of the employer. In determining whether this “sufficient connection” exists, a number of factors may be considered including:

(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
(d) the extent of power conferred on the employee in relation to the victim; and
(e) the vulnerability of potential victims to wrongful exercise of the employee’s power. (Bazley, para. 41)

The Court in that case held the employer — a non-profit organization that operated a residential care facility for emotionally troubled children — vicariously liable for the abuse of the resident children by one of their employees. It also held that charitable organizations were not exempt, despite their role in providing important public services and despite the fact that most of their “employees” were in fact volunteers. However, McLachlin J. also recognized that the principle of vicarious liability was “difficult to apply”, and that where previously decided cases on similar facts do not help, policy considerations play an important role in findings of vicarious liability.

The difficulty of finding vicarious liability was demonstrated in Jacobi v. Griffiths, [1999] 2 S.C.R. 570, the companion case to Bazley, where the Court in a 4-3 split decision found that the Boys’ and Girls’ Club of Vernon was not liable for the sexual abuse of two children by its employee, Griffiths. In that case, it appears that the decision of the majority was influenced by the fact that all but one of the assaults occurred at Griffiths’ home, and not in the course of his duties at the Club.

Conclusion
This decision comes ten years after MacFarland J. found in Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 1998 CanLII 14826, that the police breached their duty of care by failing to warn the women who were at particular risk and that they failed in their duty to protect the women in Ms. Jane Doe’s neighbourhood. MacFarland J. concluded that the police investigation of the “balcony rapist” was “irresponsible and grossly negligent”, and awarded $220,000 in damages to Ms. Doe.

Although the two cases may appear at first glance to be similar in that they both impose greater burden on the police, they are in fact quite different. Ms. Doe brought her suit against the police soon after the assault, and her complaint was in regards to how the police conducted its investigations. The decision in Doe was not appealed; indeed, following the decision, both the Toronto City Council and the Toronto Police Services Board issued a formal apology to Ms. Doe for the way in which the investigation had been handled.

In contrast, Ms. Evans did not commence her lawsuit until 22 years after the assault and it dealt with conduct that was unauthorized by the Board; the offending officer was convicted, fined and is no longer with the force. It is highly unlikely that an apology will be forthcoming in this case and it seems probable that the police board will appeal the finding that it can be held vicariously liable for the misconduct of its officers. However, for Ms. Evans’ sake, one hopes that there will be no appeal especially since Chapnik J.’s decision appears to be consistent with past SCC jurisprudence and an appeal would not likely succeed. As stated earlier, the assault occurred in a police vehicle while Sproule was on duty and in full police uniform, including his gun visible in its holster, and Ms. Evans was a particularly vulnerable victim to Sproule’s wrongful exercise of the power and authority with which his employment position bestowed him.

« Hide it

Read more… or Read more right here… »

Additionally, the court also analyzed the standard that the Minister must meet before a judge should authorize the Minister’s request for information concerning unnamed persons pursuant to s. 231.2(3). What is important for our purposes is not so much the outcome of the case, but rather the way Justice Evans rejected the argument that an earlier decision of the FCA should not be followed because “it was inconsistent with an [even] earlier decision of the Supreme Court of Canada.” (para. 56). At paras. 57-59, he reasons:

[57] …[T]his Court has decided in Miller v. Canada (Attorney General), 2002 FCA 270, 220 D.LR. (4th) 149, that only in unusual and limited circumstances should one panel of the Court decline to follow a decision of another panel. In particular, Justice Rothstein (then of this Court) stated that, in order to ensure a degree of certainty and stability in the law, a panel should not depart from a prior decision of another panel “merely because it considers that the first case was wrongly decided” (at para. 8). However, the Court in Miller also said (at para. 10) that a panel was not bound to follow a prior decision which was “manifestly wrong” in one or more specified senses, which do not include inconsistency with a prior Supreme Court of Canada decision.

[58] Nonetheless, counsel for the appellants argued that it is fundamental to the due administration of justice in Canada that lower courts are bound by decisions of the Supreme Court of Canada. Hence, he said, it must always be open to this Court to decline to follow one of its previous decisions if that decision was inconsistent with previous Supreme Court jurisprudence.

[59] I do not agree. In my opinion, a determination by this Court of the legal effect of a Supreme Court decision is as subject to the general principle set out in Miller as a decision by this Court on any other question of law.

Given this characterization, it could conceivably be the case that FCA judges may feel that a former panel’s interpretation of a SCC decision is ‘manifestly wrong’, but is nevertheless obliged to follow it. This is certainly a curious development in that if looked at from a different perspective, in this particular case, FCA judges seem more bound by previous decisions than by SCC decisions.

Nevertheless, despite the seeming usurpation of power from the SCC, consistency across the different panels sitting on a court is likely a more pressing goal. This makes sense in light of the fact that the SCC could always overrule a wrong interpretation.

« Hide it

Read more… or Read more right here… »

Issue
The Insurers claimed the delay and associated costs fell under the exclusionary “faulty or improper design” provision of the builder’s insurance policy. At trial the insurers were nonetheless found liable for damages totaling $20,966,947 since the design had incorporated forseeable risks and was “state of the art” when finalized.

The Court of Appeal of Ontaio disagreed with the trial judge, instead fining the design of the TBM to be faulty within the meaning of the exclusion provision:

The Policy here was neither a warranty that the insured property – the TBM – would fulfill its intended purpose, nor a warranty of entrepreneurial design risk. With respect, the effect of the trial judge’s foreseeability analysis in this case is to convert the Policy into just such a warranty. For these reasons, we conclude that the faulty or improper design exclusion was made out.

Thus the central issue before the SCC was whether the design of the TBM fell within the exclusionary provision of the insurance policy.

Majority
The majority of McLachlin CJ, Binnie, LeBel and Abella JJ, set aside the decision of the Court of Appeal of Ontario, finding that “failure is not the same thing as fault or impropriety.”

Herein lies the essence of the majority decision: the challenges of this projected exceeded the “state of the art” tunneling expertise at the time of design. Thus, since both CNR and the insurers understood this would be the largest TBM project every built, even with the leading experts employed there was still a risk of design failure. That is why CNR had purchased an “all-risks” insurance policy.

The majority found the risk of differential deflection, which eventually caused the damage to the seals, was properly considered during design. With the benefit of hindsight, it is not in dispute that the design failed but the Insurers may not rely on this hindsight to establish CNR was at fault. The conclusion was that the appellants had exhausted the state of the art for risks which were forseeable at the time of design. The respondents had not proved flaws in the design process brought the loss within the exclusionary provision of the policy.

Perhaps the most significant principle articulated by the majority is that insurance policies coverage provisions should be construed broadly and exclusion clauses narrowly. The result should not be an unrealistic interpretation that would not be contemplated in the commercial atmosphere in which the insurance was contracted. The narrower interpretation of the exclusion best accords with the intentions of the parties based on a plain meaning of the words used in the policy.

Dissent
In dissent Deschamps, Charron and Rothstein JJ drew a distinction between the work of the designers and the design itself and accordingly found that “a design is faulty or improper if it does not work for the purpose for which it was intended.” They found no indication from the policy between CNR and the insurers that the “state of the art” standard was their intention rather than the “design failure” standard.

At bottom, the majority and dissenting opinions differed on their interpretation of foreseeable risks. Whereas the the latter found that forseeable risks include extreme cases if sealant failure, the former did not. Since the design failed to meet its intended purpose, the dissent agreed with the Ontario Court of Appeal that it was faulty and fell under the unambiguous interpretation of the exclusionary provision.

Conclusion
As a former engineer, I will state my bias in favour of the technical experts hired by CNR up front. It is difficult, if not impossible, to foresee design for all possible and extreme risks especially when the project is the first of its kind in the world. Furthermore, the geological conditions in a particular environment can vary greatly from other similar projects making it challenging to reasonably compare adequate precautions.

That said the majority opinion is correct in holding CNR to a “state of the art” standard for planning for foreseeable risks at the time of design. The insurers likely had their own technical experts to review this policy, and if the risks of design failure were too great their recourse is to increase premiums or refuse to insure.

The consequence of following the dissenting opinion’s “design failure” standard would be an extreme caution towards technical innovation in Canada. If CNR had known this was its potential risk at the outset, it would have likely canceled the project or performed an open excavation through the St. Clair river despite the associated cost and greater environmental damage.

« Hide it

Read more… or Read more right here… »

The UFCW unsuccessfully challenged this new legislation, but in the intervening period prior to appeal, the Supreme Court of Canada released its landmark decision in BC Health Workers. That decision significantly expanded the scope of s.2(d) to include the right to collective bargaining and placed an obligation on governments to negotiate in good faith with their public sector workers. In so doing, the SCC described the right to collectively bargain as “the most significant collective activity through which freedom of association is expressed in the labour context.” However, as noted in an earlier post by Professor Judy Fudge, the BC Health Workers decision left a number of questions unanswered. In particular, the case did not concern a claim for a positive right to legislatively protected collective bargaining so it left open the question of whether private-sector workers might be entitled to state-protected rights to bargaining under the Charter. It also left open the door to whether s. 2(d) would protect the right to strike.

The Fraser decision goes a long way to help answer some of those questions. The unanimous 3-judge panel headed up by Chief Justice Warren Winkler together with Eleanor Cronk and David Watt ruled that s. 2(d) places a positive obligation on the government of Ontario to enact legislative protections for the collective bargaining rights of agricultural workers. It struck down the ALRA a unconstitutional and gave the Ontario government 12 months to devise legislation that protects this new right. But the court went further. It also ruled that the s. 2(d) right to collective bargaining requires a mechanism for resolving disputes about the interpretation and application of collective agreements, and it requires a recognition of a single representative bargaining body, similar to the exclusivity enjoyed by a unions in other industries. The court stopped short of recognizing a right to strike, however, but noted twice that the appellants had not made this request. Instead, the Court of Appeal found that s. 2(d) includes a right to a “mechanism for resolving impasses in bargaining.” Noting that “the bargaining process is jeopardized if the parties have nothing to which they can resort in the face of fruitless bargaining,” Justice Winkler seems to indicate that under s. 2(d) unions have a right to some form of recourse should the bargaining process collapse, but leaves the enumeration of what that might be to the creativity of the legislature. Instead, his judgment states mysteriously that “there exists a broad range of collective bargaining dispute resolution mechanisms” and explains that it is up to the legislature to craft the specifics of an appropriate law.

It is virtually certain that the Attorney General will appeal the decision in Fraser, leaving many of the questions left open by BC Health Workers yet to be decided. Nonetheless, with a unanimous decision written by the Chief Justice of the Ontario Court of Appeal, and a recent history of pro-labour decisions from the SCC, we may see yet another major expansion of s. 2(d) at the country’s top court. On the other hand, an economy in recession might throw weight behind the agricultural industry’s claim that unions are bad for business. In the meantime, though, labour disruptions at major universities notwithstanding, it looks like unions and collective bargaining are here to stay.

« Hide it

Read more… or Read more right here… »

Fighting for Equality in the Courts: From Egan to Halpern

The most important judicial decision regarding LGBT rights in Canada is arguably Egan v. Canada, 1995 SCC 49, which established sexual orientation as a grounds for discrimination that is analogous to those enumerated in section 15 of the Charter. In Egan, the plaintiff James Egan was set to receive retirement benefits under the Old Age Security Act. When he applied for his same-sex partner to receive spousal allowance, he was denied on the basis that the term “spouse,” as used in the Act, only included members of the opposite sex. Although the Supreme Court of Canada ultimately dismissed Egan’s appeal (the majority found that the Act did not discriminate against homosexuals as it served only to support legal marriage, an institution in which gays and lesbians could not participate), it did hold that sexual orientation attracts section 15 scrutiny.

Interestingly, La Forest J. wrote in Egan that marriage is inherently heterosexual because it is “firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate.” This reasoning was later rejected in Halpern v. Canada and in the Same-Sex Marriage Reference.

The ruling in Vriend v. Alberta, [1998] 1 S.C.R. 493, can be seen as a direct consequence of Egan. The plaintiff Delwin Vriend was fired from his job but could not seek a remedy under the Alberta Individual Rights Protection Act, the province’s human rights statute, because it did not recognize sexual orientation as a grounds for discrimination. Vriend appealed to the Supreme Court, arguing that the Act was contrary to what had been established in Egan. The Court agreed, though as a remedy, they chose to “read in” protection of sexual orientation into the Act rather than invalidate the Act altogether.

Also building on Egan was M. v. H., [1999] 2 S.C.R. 3, which established that common-law relationships should both include and award equal treatment to, same-sex couples. The case involved the dissolution of a same-sex relationship, with one partner wanting the division of property mechanisms to which opposite-sex common law spouses were entitled. The ruling was significant because it expanded section 15 of the Charter to recognize not only the notion that gays and lesbians should be protected against discrimination, but the idea that same-sex couples as a unit should treated the same as opposite-sex couples.

In response to M. v. H., the House of Commons passed Bill C-23, an amendment to the Modernization of Benefits and Obligations Act that, while extending common-law spousal benefits to same-sex couples, also defined marriage as “the lawful union of one man and one woman to the exclusion of all others.” The passage of the bill, while a victory for gay rights activists in some respects, was also a statutory blockade against having the word “marriage” include same-sex unions.

Drawing inspiration from the Civil Rights Movement in the United States, which firmly established that “separate but equal” is not equal, gay activists continued to pursue full marriage equality. Their efforts were rewarded in the watershed Ontario case, Halpern v. Canada, (2003) 65 O.R. (3d) 161. The Ontario Court of Appeal upheld the Ontario Superior Court of Justice’s decision (which can be read here) that found that the definition of marriage as a union between one man and one woman unjustifiably infringed on section 15 of the Charter. Both the OSCJ and the OCA rejected the argument once relied upon by La Forest J. in Egan to defend marriage as a heterosexual institution centred on supporting procreation and childrearing. Both courts pointed out that many heterosexual couples choose to marry for reasons other than raising children. Furthermore, many same-sex couples already have or could have children by other means, rendering this distinction between heterosexual and homosexual couples moot.

The Ontario Court of Appeal was the first appellate court in Canada to recognize the validity of same-sex marriages, but other provinces quickly followed suit; by the end of 2004, most provinces along with the Yukon had begun issuing same-sex marriage licences.

The Same-Sex Marriage Reference

The federal government chose not to challenge the decisions of the provincial appellate courts and instead promised to enact same-sex marriage legislation. In Re: Same-Sex Marriages 2004 SCC 79, the government submitted four questions to the Supreme Court regarding the constitutionality of the proposed legislation:

1. Is the [proposed legislation] respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada?

2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

4. Is the opposite‑sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms?

The Supreme Court answered yes to question 1, finding that changing the common law definition of marriage was within the power of Parliament bestowed by Section 91(26) of the Constitution Act, 1867. While section 91(26) gave Parliament the power to oversee “marriage and divorce,” and marriage had traditionally included only opposite-sex unions, the concept of the Constitution as a “living tree” meant that the meaning of “marriage” in the constitution was not fixed.

The response to question 2 was also affirmative. The Court wrote that the purpose of the proposed legislation, “far from violating the Charter, flows from it.” Only a violation of rights could be deemed an infringement of the Charter, and “the mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another.”

With regard to question 3, the Court reiterated that the proposed legislation only dealt with civil marriages. However, if the state were to compel a religious official to perform a marriage contrary to her or his religious beliefs, it would likely be a violation of section 2(a) of the Charter.

Curiously, the Court chose not to answer question 4. They stated that a response, be it in the positive or negative, would be irrelevant because the federal government intended to legalize same-sex marriage anyway. Furthermore, the lower courts had all held that limiting marriage to opposite-sex couples was contrary to the Charter. If the Supreme Court were to answer yes to question 4, it would generate a considerable amount of ambiguity about the status of same-sex marriages, as is presently the case in California.

Still, the reasons the Court provided for not answering question 4 are rather flimsy, given that the rest of the reference strongly implies that the Court believes that the answer is no, ie. that the common law definition of marriage is not consistent with section 15 of the Charter. Professor Peter Hogg speculates that the real reason the Court refused to answer question 4 was “to make Parliament play a role in the legalization of same-sex marriage, so that it could not be claimed that such a controversial project was being entirely driven by judges.” Indeed, it was Parliament and not the court system that wrote same-sex marriage into law, with the Civil Marriage Act, which was passed on June 28, 2005 and received Royal Assent on July 20, 2005.

The passage of the Civil Marriages Act made Canada the fourth country in the world to nationally recognize same-sex marriages, after the Netherlands, Belgium and Spain. South Africa has since legalized same-sex marriage and the Supreme Court of Nepal has recently directed the Nepali government to introduce legislation recognizing same-sex partnerships or marriages.

Looking Forward

As the public demonstrations continue south of border in reaction to Proposition 8, it will be interesting to see where the American gay rights movement goes from here. Unfortunately, the relatively straight path (no pun intended) that same-sex proponents took in Canada towards marriage equality does not seem as realistic in an American context. The solemnization of marriage is a state power, and currently only Massachusetts and Connecticut have legalized gay marriage. Gay rights activists would need to win court battles state-by-state to gain national marriage equality. With the courts in several states having already expressed their opposition to same-sex marriage, one wonders how long it will take until gay and lesbian Americans enjoy the same rights as their northern neighbours.

« Hide it