On August 27 of this year, the Supreme Court of Canada granted leaved to appeal in Kerr v. Baranow, 2009 BCCA 111, a family law case concerning the application of the equitable doctrine of resulting trust. In this case, the parties commenced their common-law relationship in 1981, when Ms. Kerr was in a financial crisis due to the breakdown of her previous marriage. Among the many debts outstanding was the mortgage on her home. Mr. Baranow paid off the mortgage on the home to protect it from foreclosure; Kerr then transferred title to the home to Baranow, and the parties moved into it. Baranow ultimately sold this home and the parties moved into his home, which he had been separately maintaining and would also go on to rebuild. In the latter part of the relationship, Kerr suffered a stroke and a resulting personality change, and had to be placed in an extended care facility. The couple terminated their relationship in 2006. Throughout their whole 25 years together, they kept their finances separate: each maintained his or her own bank accounts and personal vehicles, paid his or her own expenses, and acquired assets in his or her own name. To those around her, for example, Kerr made it clear that “what was hers was hers and what was [Baranow]’s was [Baranow]’s.”

On trial, the judge noted the parties were not “spouses”, and as such were not in a relationship to which the presumption of advancement, or gift, applies.  Kerr was accordingly awarded a one-third interest, or $315 000, in the matrimonial home (Baranow’s home) by application of the equitable doctrine of resulting trust, or, in the alternative, unjust enrichment. An explanation of the elements of the doctrines of resulting trust, constructive trust, and unjust enrichment, as follows: Read the rest of this entry »

There’s nothing sexier than a good, old-fashioned division of powers case. OK, that’s not true; however, the cases are important because they spell out who has to obey which laws. The Court’s recent decision in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters (2009 SCC 53) involves a narrow interpretation of the Court’s past precedents in this area, and reveals an interesting battle between originalism and the “living tree” approach to constitutional interpretation that is so familiar to first-year law students.

Fastfrate boils down to a labour dispute (of sorts) between a provincial and a federal union, each seeking to be certified as the bargaining unit for the company’s Calgary employees. Fastfrate is a national freight consolidator: it picks up shipments from various clients in each province and builds full container-loads that it then passes to third parties (generally CP Rail) to ship across the country. The third parties deliver the shipments to Fastfrate warehouses in other provinces, where Fastfrate employees then “deconsolidate” the shipments and deliver them to their destinations. This keeps costs down — Fastfrate’s clients do not, individually, ship enough freight to fill a container, meaning that in the absence of the consolidation service they would have to send half-empty containers across the country. Fastfrate is able to divide the cost of a full load among all of its clients.

The Western Council of Teamsters had applied to the Canadian Industrial Relations Board to be certified as the regional bargaining unit for Fastfrate’s employees in Alberta, Saskatchewan, and Manitoba. That prompted the Consolidated Fasfrate Transport Employees’ Association of Calgary to apply to the Alberta Labour Relations Board for a declaration on whether the company’s labour relations were subject to provincial or federal jurisdiction. The ALRB found that Fastfrate was an interjurisdictional undertaking, and therefore governed by federal labour law. The Board’s decision was appealed, and eventually ended up before the Supreme Court.
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With 9/11 trial, bad facts will make bad law
Further to the news that Khalid Sheikh Mohammad will be transferred to New York for trial in civilian court, David Feige, writing in Slate, has turned his mind to who will defend the alleged 9/11 mastermind. “No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial,” Feige notes. Reference to the continent aside — though the thought of a Canadian jury does seem rather curious — “what’s a team of hardworking criminal defense attorneys to do?” Everything they can, he argues, and that’s the problem. “Good criminal defense attorneys are seldom deterred by futility, so it’s reasonable to expect that KSM’s lawyers will make all the arguments there are to make,” Fiege argues. That will likely include arguing for the supression of testimony on the basis that it was obtained through torture, that the government has made a mockery of KSM’s right to a speedy trial, “and a thousand other clever things that should make the government squirm.” Crucially, though, most of these arguments are likely to fail at trial, not because of their legal merit, but because of political realities. And at each stage, argues Fiege, “a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent.” The bottom line: While KSM will be convicted and the U.S. will be able to declare a victory for due process, “the toll his torture and imprisonment has already taken, and the price the bad law his defense will exact, will become part of the folly of our post-9/11 madness.” Read the rest of this entry »

Since the advent of the Charter of Rights and Freedoms, a growing number of Canadian academics have delved into empirical, and especially quantitative, research on Supreme Court of Canada judicial decision-making. A flurry of articles and literature on the subject has been published in the past few months. Below is a sample of some such research.

A quick foreword: the increase in empirical research has not yet resulted in an increase in academic literature criticizing the empirical findings or discussing the shortcomings and challenges of such research projects. On the flip-side, the research findings from such projects have not yet resulted in “cross-fertilization” (e.g. legal theory scholars using primary empirical research done by third party academics to develop their own theoretical findings). Rather, the research projects seem to involve a linear progress with the same researcher or group of researchers continuing to further develop and refine their findings and theses.
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The metaphorical glass ceiling has closed in again. This time, it is the Olympic aspirations of female ski jumpers that has been crushed by a male-biased system that limits the opportunities for female advancement. Last Friday, the British Columbia Court of Appeal released its written reasons in Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522. The case is a section 15 Charter claim that alleges that VANOC discriminated against female ski jumpers by implementing the International Olympic Committee’s decision not to include their event in the Vancouver 2010 Games. According to Rule 47(3) of the Olympic Charter, “[o]nly events practiced by men in at least fifty countries and on three continents, and by women in at least thirty-five countries and on three continents, may be included in the programme of the Olympic Games.” Although this criteria was removed in 2006, it is still applied in practice. The alleged discrimination arises out of the inclusion of the men’s event notwithstanding its failure to satisfy the criteria in Rule 47. Given the historic inclusion of the men’s event in the Olympics, the IOC exercised its discretion to exempt the men’s event from the criteria.  The IOC has refused to exercise its discretion to include the female event.

Does the Charter Apply in these Circumstances?

At the Supreme Court of British Columbia, Fenlon J. held that the Charter did apply, but was not violated. To determine whether the Charter applied pursuant to s. 32, Fenlon J. applied the control and “ascribed activity” tests. According to Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, for the Charter to apply, the government must have control over the day-to-day operations as opposed to ultimate control. Ms. Sagen and her fellow ski jumpers argued that the government had control over the day-to-day operations in regards to governance, funding and policy. Although the government did exercise significant control in all three areas, it was not enough relative to the control of the IOC and other private organizations for the Charter to apply. The latter was found to apply based on the ascribed activity test.
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When families break down, Canadian courts are often charged with the difficult and unenviable task of determining custodial and access arrangements in the “best interests” of an affected child. Ontario’s Child and Family Services Act, R.S.O. 1990, c. C.11, provides a number of relevant factors to be considered in making such determinations, one of which is “the child’s views and wishes, if they can be reasonably ascertained”.

Difficulties may arise, however, if a child is of a biological age suggestive of high emotional maturity in ordinary children of the same age, but due to the “alienating” influence of one parent undermining the child’s relationship with the other parent that child’s views on custody and access seem irrationally and unalterably skewed. Such a child may be said to suffer “parental alienation syndrome”, defined by clinical psychologists as “a form of emotional child abuse almost exclusively seen in separated and divorced families in custody disputes.” This abuse may render a child incapable of developing independent opinions about the alienated parent.

How should the courts determine the “best interests” of children, specifically with regard to their own “views and wishes”, in parental alienation syndrome cases? And at which point, if ever, should the courts disregard the seemingly irrational, immature, and/or dependent opinions of older child sufferers and defer to their biological ages as a trump, allowing these opinions to guide custodial and access arrangements?

The facts of a recent Ontario Superior Court case will provide us the means to explore these important questions, while an even more recent Supreme Court of Canada decision may provide us the answers.

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(I) The Sanctity of Informer Privilege

“Informer Privilege” or “Informant Privilege”—the protection of the identity of a confidential informant—is one of the most prohibitive and absolute privileges in the Canadian legal system. The Supreme Court of Canada reiterated its importance last week by unanimously overturning both lower court decisions in R. v. Basi, 2009 SCC 52. (The BC Supreme Court decision may be found here, while the BC Court of Appeal decision may be found here.)

Writing for the Supreme Court, Justice Fish noted:

The informer privilege has been described as “nearly absolute.” … [I]t is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge.” (at para. 37 [citation omitted])

Informer privilege is considered such an important societal interest that it cannot be balanced against any other interests relating to the administration of justice. Informer privilege does not cede to the accused’s right to full disclosure, which, according to R. v. Stinchcombe, [1991] 3 S.C.R. 326, is a constitutionally protected right under section 7 of the Charter. The privilege is subject only to the very narrow “innocence at stake” exception, which engages s.11(d) of the Charter, and operates only when the accused can establish that the information is necessary to demonstrate his or her innocence (i.e. the accused is unable to otherwise raise a reasonable doubt about his or her guilt). See R. v. Leipert, [1997] 1 S.C.R. 281.

The societal interests in protecting informer identity are (i) the effective operation of law enforcement:

“The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed” (Bisaillon v. Keable, [1983] 2 S.C.R. 60 at 106)

and (ii) protection of informants, with a recognition that aiding law enforcement is the duty of all citizens:

[Informant privilege] is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same” (R. v. Leipert, [1997] 1 S.C.R. 281 at para. 9).

Factual Background and Judicial History
The R. v. Basi saga is infamously known as the “BC Rail Corruption Case.” Three former public servants stood accused of fraud, breach of trust, and money laundering over allegations that they had received bribes in exchange for providing confidential information to one of the bidders competing in the first phase of the BC Rail privatization. An in-depth factual background and detailed analysis of the BC Court of Appeal and trial decisions was provided last year on TheCourt.ca: “Informer Privilege Hearings: Unfairly Non-Adversarial or Appropriately Restrictive?” (December 1, 2008).
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NY Trials 9/11 for Plotters Still A “State-Always-Wins” System
U.S. Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other 9/11 defendants will be tried before civilian courts in New York, the city that The Christian Science Monitor calls the “terror trial capital of the US.” Salon’s Glenn Greenwald would no doubt disagree with that assertion. While acknowledging that the move is “both politically risky and the right thing to do,” Greenwald blasts the Obama administration for creating “a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict.” Other suspects will be tried, if at all, in military commissions — and those won’t be happening in downtown Manhattan, but more likely a military brig in South Carolina. Greenwald notes, for example, that Omar Khadr, a Canadian held at Guantanamo Bay, is not being sent to New York. “We’ll look at the Khadr matter … and we will, as that case proceeds, see how it should be ultimately treated,” Holder said at a news conference after the announcement. Greenwald’s gloss: “So even for 15-year-olds who we imprison for seven years with no charges, we refuse to give them a trial. And note how the Canadian press account stresses our multi-tiered system of justice and how their citizen is receiving second-tier due process — an observation that one can be sure will repeat itself worldwide.” Greenwald also takes Holder to task for his testimony before Congress on Thursday. Read the rest of this entry »

In light of what is going on across the pond these days, it behooves us to pay attention to what happens where you fail to separate state and religion. Though to be honest, when your head of state also serves as Supreme Governor of the Church of England, such an exercise might be somewhat difficult. Britain’s Supreme Court (until recently known as the House of Lords) recently heard arguments on appeal from R (E) v. Governing Body of JFS, [2009] EWCA Civ 626, [2009] 4 All ER 375, and is expected to release a decision before the year is out. In making its decision, the Court will be determining not only the validity of the school’s entrance policies, but the point at which religion will yield to other competing social values.

Background

Britain has over 7,000 publicly financed religious schools. Under the Equality Act of 2006, such schools are allowed to give preference in busy years to applicants of the school’s own faith, using criteria determined by a designated religious authority. The Jew’s Free School (JFS), a religious Jewish school, traditionally receives far more applicants than it accepts. The school’s present policy is to give priority to children who are recognized as Jewish by the Office of the Chief Rabbi (OCR).

M is the child of a father who is Jewish by birth, and a mother who underwent the Progressive Jewish conversion process. That process is not recognized by the OCR who requires conversion take place through the Orthodox Jewish procedure. As such, since Orthodox Judaism only recognizes a child as Jewish if his mother is Jewish, and according to Orthodox Judaism the mother never properly “converted”, M was not regarded as Jewish and his application was denied. Read the rest of this entry »

Unlike the U.S. courts, which are recognized for certifying a multitude of class actions and awarding prodigious punitive damages, Canadian courts see a negligible number of class actions being brought forward. Class actions in Canada rarely proceed to a contested certification motion. They often reach the certification checkpoint and are denied certification on the basis of failing to meet the requirements under the Competition Act, R.S., 1985, c. C-34, on a class-wide basis. Nonetheless, there have been several competition class actions in Canada in recent years. Recently, the courts in Ontario have certified two class actions, 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp. et al., 2009 CanLII 23374, and Axiom Plastics Inc. v. E.I. DuPont Canada Co., 2008 CanLII 23490.

On November 12, 2009, the British Columbia Court of Appeal released its decision in Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2009 BCCA 503 (DRAM). The BCCA overturned the lower court ruling and instead certified the class action against five technology manufacturers accused of fixing prices on computer memory chips. DRAM is one of the first significant appellate decisions dealing with competition law. It departs from earlier cases, most notably the Ontario Court of Appeal decision in Chada v. Bayer (2003), 63 O.R. (3d) 22, where certification was denied in similar circumstances. This conflict between the Ontario and B.C. courts at the appellate level has set the stage for a foreseeable review by the Supreme Court of Canada.
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