Legal Feeds Blog
Founder of missing-women memorial sues Vancouver for defamation, Canadian Press
Hamilton police investigate death of inmate, Canadian Press
India rejects Pakistan peace plan, Reuters
It’s back to work for the Supreme Court of Canada, which begins its fall session of hearings next week. The court will be receiving arguments on 25 appeals over the next three months, with a light calendar that includes the usual assortment of statutory and Charter challenges, commercial and civil appeals, and the occasional legal oddity.
Next week, the top court will get right down to business as it tackles a heavyweight in Daniels v. R , a 16-year-old constitutional challenge launched by Métis leader Harry Daniels, who is demanding that Métis and non-status aboriginals be recognized as “Indians” under the federal definition.
Daniels won at the Federal Court of Canada, but he saw the decision clawed back on appeal, where the court ruled that, while Métis were Indians, “non-status” aboriginals would have to be assessed individually.
The court will also hear a couple of Charter challenges next week (in Jordan v. R. and R. v. Williamson) on institutional delay within the justice system, and whether the right to be tried within a reasonable time frame is absolute or should be weighed against other factors.
Solicitor-client privilege in Quebec
In early November, the SCC looks at a rather esoteric matter that will nonetheless resonate within the legal community. In Canada v. Chambre des notaries du Québec, the Canada Revenue Agency is challenging a ruling that found notaries in Quebec — and only in Quebec — to be protected under solicitor-client privilege when ordered by the Minister of National Revenue to provide tax info on clients.
It’s an odd decision in that it imposes jurisdictional considerations on the federal Income Tax Act. The Supreme Court here will no doubt sort out the issue in la belle province while laying out principles that will prove influential across the country and further clarify the bounds of solicitor-client privilege.
Credit for time served: Truth in Sentencing Act
Political brinksmanship will also be on display in November as the court hears another Charter challenge of the Truth in Sentencing Act — Ottawa’s controversial attempt to limit judicial discretion in determining credit for time served.
Judges have railed against the tough-on-crime law, which was partially struck down last year by the Supreme Court. In R. v. Summers, the court ruled that judges may continue to offer credit of 1.5 days for every day served in custody prior to sentencing (to reflect the reality that well-behaved prisoners are typically released two-thirds into their sentence).
However, in R. v. Safarzadeh-Markhali, the Crown is appealing a decision by the Ontario Court of Appeal that struck down a specific provision that prohibits a trial judge from giving more than 1-to-1 pretrial credit if a justice of the peace denies bail due to a previous conviction.
Round II of this contentious battle begins on Nov. 4.
Can the World Bank be subpoenaed?
In World Bank v. Wallace, also being heard in November, the fate of SNC-Lavalin employees will hang in the balance as the Supreme Court rules on whether representatives of the World Bank, which aided the RCMP in its corruption investigation of SNC, can be called to testify.
As an international organization, the World Bank claims it is immune from court processes. The SCC here will determine how far that immunity goes in practice.
Another big statutory challenge, Canadian Pacific Railway v. Canada, will be heard in December, as the court reviews regulations under the Fair Rail for Grain Farmers Act.
The law, which Ottawa enacted last year to give grain farmers greater access to rail transport, expands “interswitching” obligations, where railway operators are required to move containers from one rail line to another.
Prior to the amendments, operators were required to provide interswitching services to rail lines within 30 kilometres of each other; now that limit has expanded to 160 kilometres, placing an onerous new burden on the rail sector.
CP Rail is not challenging the law itself but rather the administration of regulations under the law. In its appeal, the company argues the Canadian Transportation Agency showed itself to be a puppet of Parliament by neglecting to carry out an independent review of the proposed regulations.
This hearing will focus on the extent to which administrative bodies must be free from political interference.
Bestiality and animal games
Then you have your odds and ends and legal curiosities — a couple of which deal with animals this fall.
In Riesberry v. R., an animal trainer was caught injecting performance-enhancing drugs into a race horse. He argues that horse racing is not technically a “game” under the Criminal Code and, therefore, he wasn’t committing a “crime.”
And, finally, in R. v. D.L.W., the highest court in the land will be required to hear an appeal, as of right, on bestiality.
The respondent here argues that the crime of bestiality requires actual penetration. We’re not going to touch that here, but come November the SCC definitely will.
Global law firm Allen & Overy is closing its Toronto office as the outpost’s sole partner departs for an in-house gig in his hometown of Montreal.
|Francois Duquette is moving back to Montreal for an in-house position with Caisse de dépôt et placement du Québec.|
“I thought it was a good move for my career,” says Duquette, adding moving back to Montreal was also a plus.
Duquette, who staffed Allen & Overy’s Toronto office with a senior associate, says the firm decided to shut down the office after he accepted the job in Québec.
“I decided to make that move and the firm had to decide what they wanted to do with the Toronto office. [They] took the decision to close the office because I am the sole partner and therefore there was an issue with keeping the office open in this configuration,” he says.
The firm, headquartered in London, England, will continue to serve its Canadian clientele on a fly-in-fly-out basis, as it did prior to the opening of the Toronto office.
Allen & Overy’s Toronto office, the firm’s only Canadian presence, did not involve practising local laws. It used Canadian firms for domestic legal work, a system that will continue going forward.
“It was never our intention to practise local law; it was always meant to be a marketing outpost,” Duquette says.
In Toronto, Duquette’s main duties included continuing transactions he had started when he was based in the Middle East and Africa, and acquiring new clients for the Allen & Overy network. Before starting the Toronto office last year, Duquette practised in Abu Dhabi from 2004 to 2011 and founded the firm’s Casablanca office in 2011.
For Duquette, in-house legal work isn’t new. He was seconded to a Middle Eastern energy company five years ago and enjoyed the in-house dynamic, he says. After his tenure in Toronto, which didn’t involve Canadian legal practice, he’s looking forwarding to doing more hands-on work.
“It will be good to get my hands dirty again,” he laughs.
Caisse de dépôt has a good mix of local and international clients, Duquette also says.
“For me it was the perfect fit,” he adds. “Pension fund is a very interesting and diversified work.”
Allen & Overy, a Magic Circle firm, has more than 500 partners and boasts offices in some 30 countries.
Man stabbed to death in Cape Breton, Canadian Press
- However CSA stats show mining, oil & gas, and tech sectors have fewest women at the table
A report from the University of Calgary and Alberta Securities Commission shows the number of women on boards in that province is on the rise, but the oil patch has a long way to go compared to other sectors.
|Number of women on boards by industry (Source: CSA’s ‘Staff Review of Women on Boards and in Executive Officer Positions’)|
The study found:
• 22 per cent of all new board directors of TSX-listed Alberta issuers appointed in 2015 are women.
• Women hold nine per cent of all TSX-listed board positions of Alberta issuers, up from eight per cent in 2014. The number of TSXV-listed board positions held by women remained steady at four per cent year over year.
• Women hold 20.3 per cent of all board positions of Alberta issuers in the TSX/S&P 60 Index, in line with the average number of women on boards for the entire TSX/S&P 60 Index (20.8 per cent) according to Catalyst’s most recent survey.
• Of all companies surveyed, 29 per cent have one woman or more on the board of directors, while only three per cent have three or more women on their board. That is up over last year when 25 per cent of all companies surveyed had one woman or more on their board of directors; two per cent had three or more.
However, according to statistics released by the Canadian Securities Administrators Monday — in “Staff Review of Women on Boards and in Executive Officer Positions” — mining, along with oil and gas and technology industries had the most issuers with no women on their board of directors, at 60 per cent or more in each sector.
About half of all issuers in the biotechnology, mining, oil and gas, and technology sectors do not have any female executive officers.
Utilities and retail sectors had the most women on their boards with 57 per cent and 43 per cent of issuers respectively, having two or more female directors. They also had the fewest boards with no women on them.
While the numbers in Alberta appear to be increasing, the province is one of three, along with British Columbia and Prince Edward Island, that did not agree to the Canadian Security Administrators’ guidance issued last December regarding women on boards.
Securities regulators in Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec, and Saskatchewan did adopt the rules requiring companies to disclose, on an annual basis, information on policies relating to the identification and nomination of women directors, targets for women on boards and in executive officer positions as well as the number and percentage of women on the issuer’s board of directors and in executive officer positions.
Absent this kind of direction, governance expert Richard Leblanc says the change won’t just happen organically.
“What the oil patch should do is endorse the need for measureable objectives for women on boards, and develop a talent pool for women early on in their executive careers to identify and nurture high potential board talent,” says Richard Leblanc, an associate professor in law, governance, and ethics at York University.
Leblanc says regulators want to see progress on increasing the number of women on boards within three years and with one year down, “the clock is ticking.”
“Regulators are clearly seized with enhancing women on boards, in dozens of countries. They have shown they will act. I predict they will act further in Canada if the directorial community does not does not make adequate progress,” he says.
Shooting death at Vancouver mall linked to gangs: police, Canadian Press
A Toronto lawyer who lost his copyright claim against Wal-Mart Stores Inc. over his political memoir about the former prime minister of Kenya is taking his case to the Ontario Court of Appeal.
Miguna Miguna, a lawyer who spent four years as a key adviser to former prime minister Raila Odinga, before the pair fell out, took the retail giant to task after learning it was offering his book, Peeling Back the Mask: A Quest for Justice in Kenya, for sale on walmart.com. He also sued Consortium Book Sales and Distribution LLC, a company identified on walmart.com as the publisher of the book.
Miguna claimed he didn’t consent to any publication, production, or release of the book by the defendants, Ontario Superior Court Justice Graeme Mew noted in his decision this month granting summary judgment in the case.
Miguna alleged the proper publisher was Gilgamesh Africa Ltd., a company granted the right to publish the book through an agreement between Miguna and Gilgamesh Publishing Ltd. Consortium, however, said it was merely a distributor of the book and it had a distribution agreement with Gilgamesh Publishing Ltd. In fact, it said it never actually supplied a single copy of the book to anyone despite its appearance on walmart.com.
But as Mew noted, Miguna claimed his relationship with Gilgamesh Africa had fallen apart. He alleged it never delivered on its contractual obligations to him and never marketed, distributed, or sold the book. Alleging the publishing agreement “was a fraud from the beginning,” Miguna said he had terminated the contract in January 2013.
In considering the defendants’ motion for summary judgment this month, Mew found Miguna’s dispute with the Gilgamesh entities wasn’t the issue before him.
“There is no evidence in the record that the defendants dealt with any copy of the book that was not produced by Gilgamesh Africa or under its authority, or that does not bear the imprints ‘Gilgamesh Africa 2012’ (there is a reference in the record to the existence of pirated copies of the book in Kenya, but there is no suggestion that there is any link between that and the actions of the defendants in this case),” he wrote in Miguna v. Walmart Canada.
As a result, Mew found there were no genuine issues requiring a trial and there was no reasonable basis to believe further discovery would address the deficiencies in the case. He granted the defendants’ motion to dismiss the action and suggested Miguna should pay their costs on a partial indemnity scale.
Last week, however, Miguna filed a notice of appeal seeking to set aside Mew’s decision in its entirety. Among other things, he argues Mew committed several errors of law by failing to correctly apply the Copyright Act and case law as well as the appropriate test for summary judgment.
“He failed to take a hard look at the evidence and fully appreciate all the material evidence before him,” Miguna says in his notice of appeal.
“In the end, Justice Mew’s Reasons for Judgment is primarily a regurgitation of the respondents’ arguments; not a reasoned decision supported by material facts and relevant, credible and reliable evidence before the court.”
“The appellant had produced a true copy of the Assignment of Contract to Gilgamesh Africa Ltd. dated July 12, 2012. After the Contract Assignment, there was no residual rights that vested on Gilgamesh Publishing Ltd., hence the latter could not have assigned distribution rights to Consortium as alleged by the respondents in their pleadings and evidence. Moreover, on January 6, 2013, the appellant terminated the publishing contract with Gilgamesh Africa Ltd. This proves that as of March 2013 when Gilgamesh Publishing Ltd. and Consortium were purporting to enter into a distribution agreement, they could not have done so validly even if Gilgamesh Africa Ltd. had given them authorization (a claim that the respondents had not made and the appellant has not conceded in any event).”
Update 1:55 pm: Comments from Ilan Ishai removed due to lack of permission from client.
Mississauga woman faces charges for 2007 sexual assault case, Canadian Press
Canadian hoverboard seller faces global patent war, Canadian Press
Suspect in Mississauga murder turns himself into police, Canadian Press
The Supreme Court of Canada ruled today that the Ontario Energy Board was justified in denying Ontario Power Generation’s full 2011 and 2012 rate increase requests in the hopes it will send a signal to better control operating costs for the consumer.
|The Supreme Court says the OEB was justified in denying OPG’s rate increase. (Photo: Ontario Power Generation)|
“It’s an affirmation of the discretion of the experts; certain costs or expenses do not mandate particular decisions by the regulators,” says Zacher. “The regulator was not beholden to those [union] expenses. It’s settled some uncertainty.”
With one dissenting judge on the panel of seven, the majority stated in Ontario (Energy Board) v. Ontario Power Generation Inc.: “the [OEB’s] disallowance may have adversely impacted OPG’s ability to earn its cost of capital in the short run. Nevertheless, the disallowance was intended to send a clear signal that OPG must take responsibility for improving its performance.”
In May 2010, OPG made a routine application to the Ontario Energy Board to have its electricity rates fixed for 2011 and 2012. The OEB determined that OPG’s staffing levels and employment costs were too high and provided a rate $145 million less than the $6.9 billion revenue requirement for the two-year term OPG had been seeking.
However, OPG had previously negotiated staffing levels and wages for its unionized workforce through 2012 and argued on appeal it was not in a position to reduce those fixed costs.
A majority at the Divisional Court ruled the OEB’s denial of the full rate increase request was reasonable and should not be disturbed on appeal, however, a dissenting judge concluded that the union agreements imposed committed compensation costs on OPG and a prudence review by the SCC was required to determine if the rate request was justified and reasonable.
“Such a signal may, in the short run, provide the necessary impetus for OPG to bring its compensation costs in line with that, in the Board’s opinion, consumers should justly expect to pay for an efficiently provided service,” wrote Justice Marshall Rothstein in today’s ruling. “Sending such a signal is consistent with the Board’s market proxy role and its objectives.”
Justice Rosalie Abella, the lone dissenter, stated she believed the OEB erred in its denial “to separately assess the compensation costs committed as a result of the collective agreements from other compensation costs” and “ignored not only its own methodological template, but labour law as well.”
“The Board’s decision was unreasonable because the Board failed to apply the methodology set out for itself for evaluating just and reasonable payment amounts,” she stated. “It [OEB] both ignored the legally binding nature of the collective agreements between Ontario Power Generation and the unions and failed to distinguish between committed compensation costs and those that were reducible.”
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