Legal Feeds Blog
The Supreme Court of Canada struck a compassionate note today as it set aside a decision by the former Ministry of Immigration to reject the post-refugee application on humanitarian grounds of a child fleeing war.
The decision, Kanthasamy v. Canada takes on added significance for Canada as it welcomes its first wave of Syrian refugees today. Here, the applicant was a 16-year-old Tamil boy from northern Sri Lanka. His parents, fearing for his safety after Sri Lanka’s civil war, had arranged for him to live with his uncle in Toronto.
|Immigration lawyer Ron Poulton says the decision helps to “cleanse” the injustices in immigration law that had been mounting under the previous federal government.|
Kanthasamy’s refugee application was rejected by the refugee board, whose decision was then upheld by the Federal Court and again at the Federal Court of Appeal.
When the boy then applied for the Minister of Immigration to exercise his statutory discretion to grant permanent residency on humanitarian grounds, the officer reviewing the application used guidelines to conduct a “hardship assessment,” which ultimately concluded that (a) the boy’s post-traumatic stress disorder could be treated in Sri Lanka, and (b) there was no specific evidence of discrimination in his case.
In a 5-2 decision written by Justice Rosalie Abella, the SCC found that the immigration officer applied the guidelines so rigidly as to misconstrue them, ignoring the purpose of the provisions granting ministerial discretion in the first place — namely, to allow for compassion where appropriate.
As the decision states: “Officers should not fetter their discretion by treating them as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion anticipated by [the Immigration and Refugee Protection Act].”
The decision, moreover, finds the application of hardship assessments used to deny compassionate grounds for children particularly egregious, given that children cannot be said to be “deserving” of any hardship.
“ . . . by evaluating K’s best interests through the same literal approach she applied to each of his other circumstances . . . the Officer misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that children cannot be said to be deserving of hardship.”
Immigration lawyers Ron Poulton and Toni Schweitzer intervened in the case on behalf of the Parkdale Community Legal Services (which, incidentally, was the first time a husband and wife legal team appeared together before the court).
Poulton says the decision helps to “cleanse” the injustices in immigration law that had been mounting under the previous federal government, and helps bring Canada back into line with its basic values.
“We saw over the past six to eight years a very different immigration department,” he says. “We saw one that was much more restrictive. We saw one that was refusing cases that, prior to, would not have been refused, and we saw a very closed-minded department. . . . So the impression we definitely got was that they received marching orders at some level of government that it was time to close the door.”
Reading the evidence in Kanthasamy, Poulton says he could see the immigration officer “reaching” to refuse residency: “The problem with the way that they were exercising their discretion was that they weren't exercising it. They were following a rigid template. . ..They fettered their discretion when they should have been looking at it through the lens of equity.”
Even if the hardship assessment did apply to a child — and the Supreme Court states unequivocally that it does not — Poulton says that the immigration office wasn’t applying the assessment properly, with perhaps the most obvious example being the casual dismissal of the boy’s mental condition.
“This young man had post-traumatic stress disorder,” he says, “and what the [immigration] officer said was, you can get treatment for that in Sri Lanka. And the court said, well, that's ridiculous. You have to consider the impact on his mental health in leaving, not just the fact that he maybe can get treatment for something.”
Ultimately, Poulton hopes that this decision will guide future governments toward policies that reflect Canadians’ compassionate nature.
“This demonstrates, as well as how our nation has responded [to the Syrian crisis], the ‘un-Trump-like’ attitude of Canadians — that we’re open to people from other countries and other nationalities. Were compassionate to them, and we’re willing to help them in any way that we possibly can.”
In other news, the SCC today granted leave to appeal in Green v. Law Society of Manitoba. The case deals with a lawyer who was suspended for not completing a sufficient number of continuing professional development activities. Green argues that the law does not explicitly provide for suspension in such circumstances. His arguments were dismissed in a lower-court appeal.
Ontario corrections workers reject tentative agreement, Canadian Press
Thieves steal 1,000 pounds of lobster in Nova Scotia, Canadian Press
Former Conservative cabinet minister and MP Helena Guergis’ lawsuit against Cassels Brock & Blackwell LLP is a step closer to trial after a judge dismissed an appeal to strike two of Guergis’ claims against the firm and its lawyer Arthur Hamilton.
|Guergis’ claim that a Conservative Party lawyer caused former PM Stephen Harper to fire her in 2010 will go to trial. (File photo: Chris Wattie/Reuters)|
The lawyers for Cassels Brock and Hamilton had argued the court should strike out this claim at the pleadings stage because Crown privilege prevents the court from inquiring into any aspect of Harper’s decisions, including any contribution to them by the Hamilton and Cassels Brock.
“As with the prior ruling, the threshold on a pleadings motion is low and much discretion is given to the judge hearing such a motion,” wrote Warkentin.
Warkentin also declined to reverse a motion judge’s decision not to strike out Guergis’ claim that she was in a solicitor-client relationship with Hamilton and he breached his duties to her through a testimony before a Parliamentary committee, which is protected by parliamentary privilege.
Guergis’ action against Harper and his ministers for conspiracy, defamation, misfeasance in public office, intentional infliction of mental suffering, and negligence was dismissed on the basis that the former prime minister’s decisions were protected by the exercise of Crown privilege and parliamentary prerogative.
But while Parliamentary privilege may protect Harper and his ministers’ actions, Guergis argues “those privileges could not be used by Hamilton to shield himself” and “there is no policy basis to excuse Hamilton’s behaviour on the same basis that shields a political decision by a Prime Minister.”
Cassels Brock and Hamilton argued the claim should be struck from the pleading because parliamentary privilege is absolute and there is no requirement to balance it against solicitor-client privilege.
Warkentin wrote: “It was open to the Motion Judge to find that the issue of parliamentary privilege versus solicitor and client confidentiality was an issue best determined by the trial judge rather than on a pleadings motion.”
Paul Le Vay, counsel to Cassels Brock, declined to comment on the ruling.
In 2010, Harper fired Guergis as a minister of for status of women and threw her out of his cabinet after allegations linked her and her husband, former MP Rahim Jaffer, to illicit drug use, prostitution, and fraud. The RCMP has since cleared Guergis of any wrongdoing.
Quebec law on assisted dying back in court, Canadian Press
Queen’s University law students Adam Sadinsky and Ian Moore have turned a friendly rivalry — in the form of a bet on opposing Grey Cup teams — into a fundraising initiative for a local refugee relief fund.
|Canadian premiers and Queen’s law students had similar idea to bet on the Grey Cup and donate proceeds to Syrian refugees. (Image: Meagan Berlin)|
Sadinsky says the fundraising initiative was so popular because people “feel very strongly about Canada’s obligation to bring in refugees, but at the same time don’t exactly know how they can help out, and this was a very easy way.”
The avid football fans are both in third year law at Queen’s in Kingston, Ont., and are founders and creators of the student newspaper Juris Diction. And they apparently already think like premiers of Canada.
Alberta Premier Rachel Notley and Kathleen Wynne, her Ontario counterpart, recently had the idea to make a similar friendly bet, but the law students came up with it first, says Sadinsky.
According to the the Alberta premier’s Twitter account, Notley called Wynne out with “#GreyCup bet? Loser wears opponent’s jersey in the House to boast about the winning province” and donates to help Syrian refugees of that province.
Sadinsky hails from Ottawa and Moore is from Edmonton, which made the two friends natural rivals in this year’s Grey Cup.
A week prior to the Edmonton Eskimos v. Ottawa Redblacks game on Nov. 29, the students published their wager on the official Queen’s Faculty of Law Facebook page. Rather than having the winner keep the loot, students promoted the wager via a local newspaper offering law students to make their bets with proceeds going to future Syrian refugees who would be coming to Kingston.
“We decided to keep it local,” says Sadinsky, “I think that local aspect helped out,” referring to how donations “snowballed.”
Prior to the game students used the Tilt app for donations while announcing the team they were rooting for on Facebook.
Due to the amount of attention the initiative received, they decided to keep the good will flowing until this Friday, Dec. 11. To date they’ve rasied $590.
Sadinsky says this isn’t the only initiative going on at Queen’s law. A group of law students have been working since September “to get ready to provide legal assistance to refugees and people sponsoring refugees . . . coming in.”
A larger overall initiative to help Syrian refugees is also in the works, he notes.
Ryerson University could be home to the Canada’s newest law school.
A year after the launch of the English Law Practice Program, its executive director Chris Bentley confirms the school is conducting an internal consultation as to whether it will launch its own law school.
|Chris Bentley says between the LPP and its new Legal Innovation Zone, Ryerson has shown it has a lot to contribute to the legal sector.|
Bentley says between the LPP and the recently launched Legal Innovation Zone, Ryerson has shown it has a lot to contribute to the legal sector.
“It’s entirely consistent with Ryerson’s determination to lead. There is a great opportunity for an institution, and Ryerson is the perfect one, to lead an innovative approach to legal education and build something that’s not been built before,” says Bentley.
Bentley says following the internal consultation an external proposal would have to go to the Federation of Law Societies of Canada, the Law Society of Upper Canada, and the Ontario government. The FLSC has to give its approval to any new law school, LSUC then has to give its stamp of approval, and the province would have to agree to the funding.
“There is a ways to go here,” says Bentley. “However, Ryerson has a unique way of establishing the goal and making sure they reach it.”
Bentley, a former Ontario attorney general, acknowledges criticism about too many law school grads not being able to find articling positions or jobs after articling. But, he adds, the need is to address how legal education is being delivered.
“If you’re going to meet the needs of the 21st century you can’t be using the same approach to education we used decades ago,” he says. “One of the challenges we have in the legal profession is we are using time-honoured approaches and thinking they alone are going to be enough, and they’re not.”
Ryerson's model might address one of the issues the Canadian Bar Association's touched on in its Futures Report in terms of teaching the next generation of lawyers differently, says Fred Headon, past president of the CBA and chairman of the Legal Futures Initiative.
"In the Futures Report we certainly say there is need for new ways of teaching law and given Ryerson's past approaches of how to teach this could be very exciting," says Headon. "They certainly have been innovators in education and this could be a very interesting development."
Headon noted other new law schools have positioned themselves in light of the markets they are in, such as Lakehead University in Northwestern Ontario and Thompson Rivers University in British Columbia.
"I think other schools are looking at how to help graduates find their way to some career that is sustainable, such as some of the things the University of Calgary has done," he says.
"I think that would be something Ryerson will hopefully consider as it develops its proposal is where might they be able to best help their graduates find their new careers."
While some argue there are too many law grads seeking too few articling positions and ultimately jobs, University of Ottawa law professor and former dean Bruce Feldthusen says there is an “untapped demand” for places in law school, so why not have those spots filled here in Canada rather than abroad.
“The last time I checked the stats, we had between 800 and 1,000 lawyers who obtained degrees outside Ontario applying to be admitted to the bar in Ontario. The majority were Ontario residents who had not been able to get into law school in Ontario and therefore had gone offshore,” he says.
Foreign law schools are expensive and yet people go there when they can’t get into Canadian law schools, he notes.
“It’s not irrational what is being proposed from that point of view.”
Feldthusen says it is prejudicial to poorer students in Ontario and to first-generation Canadians if their only alternative is to leave the country.
“I’m not sure why we want to give that market for legal education to foreign providers,” he says.
However, he acknowledges the practice of law has slowed in the last decade and applications to law school have dropped.
“It’s a more complicated question than it appears on the surface. Whenever I hear people saying they want to roll back enrollment in Ontario I say that gap would be immediately filled by offshore providers.”
Bentley says a law school at Ryerson would be “something you haven’t seen before” and “enormously attractive” not only to students but prospective employers.
“What we found with the Law Practice Program is that we’ve been able to place 220 candidates, who successfully completed our training, in a very challenging market and this year we will have the same number to place and we will find placements for them. We’ve shown we are able to do that,” he says.
“One of the attractive features of our LPP candidates is that they do get a very intensive, innovative practical training so they are able to hit the ground running with employers.”
Update 4:05 pm: Comments added from Fred Headon.
Nova Scotia RCMP arrest alleged escaped prisoner, Canadian Press
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Woman dies ater being hit by car at Brampton car wash, Canadian Press
The Ontario Court of Appeal has rattled the title insurance industry with it’s ruling last Friday that the standard form insurance contract covers a homeowner who later learned that a support wall had been illegally removed by the previous owner, contrary to the building code and municipal approval.
|Court ruled defects from renovations that don’t meet code or have municipal approval are covered by title insurance policies. (Photo: Shutterstock)|
“Title insurance is probably, at this point in time, one of the most widely distributed insurance policies in the country,” he said, noting that almost every home purchaser now obtains both title and fire insurance coverage.
However, he said, the scope of what title insurance actually covers remains a bit of a mystery, since there is a lack of case law on the topic in Canada.
“I think there’s been a major gap in the law on title insurance, given the incredibly widespread use.”
This case, he says, casts light over that shadow.
Real estate lawyer Bob Aaron added that the case is a “big win for homeowners.” He said it means if “there was illegal work done in the house that didn’t comply with the building code, the title insurance policy would cover a post-closing work order from the city.”
In MacDonald v. Chicago Title Insurance Co. of Canada the MacDonald homeowners bought a Toronto, multi-story home in 2006. In 2013, they learned a load-bearing wall had been removed during renovation work undertaken by the previous owner without a building permit. That made the second floor unsafe.
The city issued a remediation order, requiring the couple to temporarily support the floor and they claimed under their title policy.
The couple brought a summary judgment motion, but the lower court judge ruled their title policy did not cover the situation and held their title was unaffected by the illegal construction because the house still remained marketable, albeit not worth what is was before the defect was discovered.
He noted the city work order was not registered on title, and he granted summary judgment in favour of Chicago Title.
On appeal, however, Justice C. William Hourigan disagreed with the motion judge’s interpretation of the contract. Hourigan said the motions judge acted on his “own volition” when he held that for a municipal work order to affect an owner’s interest in their property it must be registered on title.
Municipal work orders, he wrote, “are a defect that can only be discovered by what are commonly known as ‘off-title searches.’”
LAWPRO, which intervened in the case, provided evidence involving a 2005 agreement between it and the major title insurers, where the real estate transaction levy would be waived in exchange for title insurers releasing Ontario lawyers for any claims arising under a policy and indemnifying lawyers against any settlements or judgments involving title insured transactions.
LAWPRO’s affidavit stated it understood the definition of title meant more than claims and impediments registered against title, but included defects that could only be discovered through off-title searches.
LAWPRO argued if the lower court ruling wasn’t overturned, then its agreement with title insurers would not cover claims that arose off-title and LAWPRO would bear the responsibility even though it waived the transaction levy.
Hourigan agreed, noting that “the restrictive scope of title insurance contemplated by the motion judge would cause chaos in the real estate bar as, no doubt, purchasers of title insurance throughout the province has instructed their solicitors not to conduct the off-title searches on the understanding that such defects were covered by their title insurance.”
The result, he said, was an “unduly restrictive interpretation of the coverage, and that amounted to an error of law.
Hourigan cited the section of the policy dealing with unmarketable title and disagreed with the motion judge’s finding that the homeowner’s title was not affected, because they could still sell their house.
“The fact that someone might be willing to purchase a dangerously defective building does not mean that it is marketable under the title policy.”
He noted that the marketability provision needed to be construed broadly under insurance contract interpretation principles.
Hourigan said the danger flowed directly from the previous owner’s failure to obtain the necessary municipal approval for the changes, and that failure made the property unmarketable within the definition of the title policy.
He awarded the couple their costs for the appeal and the earlier motion application.
When reached, Robert Dowhan, counsel for Chicago Title had yet to discuss the case with his client and declined to comment.
For his part Tighe said he argued that “title is the legal snapshop of what you house is,” and he believes the case could have far-reaching impact.
“There’s a lot of properties that have been renovated or built that have all sorts of issues. It’s very, very common. The question becomes whether the construction or building issue is a title issue.”
Aaron added that he didn’t think the Supreme Court of Canada would give leave to an appeal. In fact, he said, the MacDonald ruling “changes a lot of litigation in progress. There might be a lot of settlements coming up pretty quickly.”
This week, the Supreme Court of Canada will hear five appeals, including a couple of agricultural cases. In one, CP Rail is challenging a law that requires it to move grain shipments from one rail line to another. Another will decide whether farmers benefiting from price-stabilization programs can be docked because of other social assistance.
Dec. 8 – Quebec – Mennillo v. Intramodal
Commercial law: Johny Mennillo and his friend Mario Rosati joined to found the company Intramodal. Mennillo would provide the financing and Rosati would manage the company. Shares were split 51-49 in favour of Rosati. In 2005, Mennillo resigned as a director. He continued to finance the company but no longer guaranteed the debts of Intramodal. Upon being repaid, Mennillo was told he was no longer a shareholder, which led him to file suit. On appeal, the court found that Mennillo forfeited his shares in the company when he refused to abide by the original agreement. The SCC will review whether shareholders forfeit their stake under these circumstances.
Read the Quebec appeal court decision
Dec. 9 – Federal – Canadian Pacific Railway v. Canadaanadian Pacific Railway v. Canada
Administrative law: CP Rail is challenging Ottawa’s Fair Rail for Grain Farmers Act, which gives grain farmers and other railway clients the right to “interswitch” their goods between rail lines within 160 kilometres at a prescribed rate. (The previous limit had been 30 kilometres.) CP alleges that by following the stated intentions of Parliament without an independent review the Canadian Transportation Agency had allowed the executive branch to unduly interfere with its independence. The SCC will review the extent to which administrative bodies must be free from such interference. A sealing order is in place.
Read the Federal Court of Appeal decision
Related news stories:
CP challenging extended rail interswitching rules, Ag Canada
CP fights back over Ottawa’s new railway regulations, The Globe and Mail
Agriculture law: The applicants in this case are farmers participating in Quebec’s Farm Income Stabilization Insurance Program, administered by the respondent Financière Agricole du Québec. The program ensures farmers receive a positive annual income by reimbursing them when costs rise above revenue. The applicants claim they are owed $92 million, arguing the Financière Agricole wrongly calculated their compensation. The SCC will review whether the Financière Agricole was within its rights to take such factors as social assistance programs into account when calculating farm insurance payments.
Read the Quebec appeal court decision
Dec. 11 – British Columbia – R. v. Newman
Criminal law: The respondent was convicted of first-degree murder, the trial judge having found that he stabbed and shot the victim while committing the offence of forcible confinement. On appeal, the respondent argued that the forcible confinement charge was not a separate act, as required for a first-degree murder conviction, but rather coextensive with the murder charge. The appeal court agreed, substituting the trial decision with a second-degree murder conviction. One judge stood in dissent. The Crown is asking for the first-degree conviction to be reinstated.
Read the British Columbia Court of Appeal decision
Related news stories:
UN gang killer has conviction downgraded to second-degree murder, Vancouver Sun
Dec. 11 – New Brunswick – R. v. McKenna
Criminal law: The respondent was convicted of second-degree murder for an incident in which the respondent claimed he had not been paid for renovation work. After drinking heavily, he went to the victim’s home armed with a shotgun and demanded payment. The appeal court found the respondent had not intentionally shot the victim, but the gun went off during a physical altercation. One judge stood in dissent, and the appeal is being heard as of right.
Read the New Brunswick appeal court decision
Related news story:
Widow of murdered tells court ‘I thought I’d be next’, New Brunswick Beacon
Don Martin to testify at Arthur Kent defamation trial, Canadian Press
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