Legal Feeds Blog
Katie Sykes, a law faculty member of Thompson Rivers University, has written a paper that outlines international support for the formation of global animal protectionism. It argues law rather than science played a main role in arriving at two landmark decisions.
|‘Science can only inform, and cannot ultimately decide, the legal questions’ around issues such as whaling. (File photo: Issei Kato/Reuters)|
It has been accepted for publication in the European Journal of International Law and looks at two significant 2014 international legal decisions that make major strides in the protection of species. They are the World the World Trade Organization’s ruling upholding the EU law banning seal products, and the decision of the International Court of Justice that Japan’s Antarctic whale hunt is not exempt from the international moratorium on commercial whaling because it does not qualify for the scientific research exemption under international whaling law.
Science plays an important role in both decisions but the paper finds that the decisions are based more on legal arguments with science as a foundation of the arguments.
“Both cases, as well as the broader international controversies over whaling and sealing in the context of which they arose, illustrate the persuasive power of the ‘appeal to science’: enlisting scientific objectivity and rigour to underpin the credibility of legal arguments and legal norms,” says the abstract.
“But the role of science in both cases, while important, is only auxiliary. The questions that the WTO and the ICJ had to resolve were fundamentally legal ones concerning the interpretation of the relevant treaties. The cases also implicated more profound questions of policy and ethics at stake in international conflicts over the protection and the exploitation of marine mammals.”
The abstract and paper can be found at on the Social Science Research Network.
A couple who lost $3.6 million lawyer Javad Heydary disappeared are entitled to garnishment from his liability insurance policy — but will have to renounce any claims against three lawyers formerly employed by him, the Court of Appeal for Ontario ruled yesterday. They will get well under the $3.6 million they lost.
In November 2013, Heydary disappeared after claims were filed by Hasan and Samira Abuzour, a Mississauga couple, for $3.6 million he had been holding in trust for them. Heydary was later declared dead. Soon after his disappearance, the Abuzours successfully obtained two court orders requiring the payment of the funds from the trust account held by Heydary’s company, Heydary Hamilton. But the money was not forthcoming, and Heydary and Heydary Hamilton were found in contempt of court.
In March, 2014, the Abuzour’s lawyer sent a demand letter to three lawyers formerly employed by Heydary — Jeff Landmann, Darren Smith, and Yan Wang — threatening to sue them “unless a resolution is reached” regarding the missing funds.
Last October, Superior Court Justice Michael Penny awarded the sum remaining in Heydary’s $1-million coverage under LawPRO’s innocent-party insurance to the Abuzours. According to the terms of the policy, LawPRO is entitled to use some of the money to investigate and defend claims that might arise against a lawyer ensured by it.
The three lawyers then filed a motion to set aside or vary the order, arguing the payout would leave them without coverage in case the Abuzours sued them.
But in February, Penny ruled against the motion.
The lawyers appealed the decision, and in April LawPRO successfully obtained an order to stay the garnishment order pending a decision in the lawyers’ appeal.
In yesterday’s ruling, the three-member Court of Appeal panel ruled to allow the appeal and vary the motion judge’s order, adding a requirement that the Abuzours “should provide a release as a condition of the payment to them of the garnished insurance policy limits.”
Explaining the panel’s decision, the ruling states: “This situation is unusual in that the initial orders for payment out of the Heydary Hamilton trust accounts were not based on negligence, omissions, errors or fraud covered by the policy. It is the failure to comply with these orders which arguably gives rise to an insured loss.”
But the most important factor in the panel’s decision, the ruling states, is that, despite their refusal to release the lawyers from future claims against them for the missing money, the Abuzours were unable to provide any grounds for a possible lawsuit against them.
“The respondents at oral argument were unable to articulate any basis upon which the respondents might advance a claim against the appellants relating to the money which has vanished,” wrote Justice Gladys Pardu for the panel.
“I am left with the impression that the respondents’ refusal to execute a release in favour of the appellants is a tactical one, designed to extract funds from innocent parties who do not have the means to defend themselves. The losses suffered by the respondents must be devastating, but there is no basis shown to visit Heydary’s misconduct on the appellants.”
Commenting on the decision, Brian Radnoff, counsel for the three lawyers, says, “My clients, who were also innocent victims of Mr. Heydary, are pleased they will not lose their insurance coverage for a claim that was asserted against them.”
The Abuzour’s lawyer could not be reached for comment.
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Ontario Ombudsman Andre Marin’s annual report cites “recurring concerns” around the way the Ministry of the Attorney General’s Office of Public Guardian and Trustee treats its vulnerable clients.
Marin’s report says his office received 142 complaints about poor customer service and communication from the office, which manages the financial affairs of people who don’t have the capacity to do so themselves or have anyone else who is authorized to act on their behalf.
“For example, a long-time OPGT client received a payment of almost $33,700 from an insurance company, as reimbursement for 20 years of underpayments. Not only did the OPGT not inform her about the money, it withdrew $15,500 from her account as compensation for being her financial guardian for 13 years,” says the report released this week.
“The OPGT is able to collect payment for guardianship if clients are able to pay. However, it can defer payment if a client is unable to pay — a fact that it did not advertise. The woman had repeatedly asked the OPGT for information about her finances and did not receive adequate information about the additional funds or the deferred compensation until our office intervened,” it says.
At ARCH Disability Law Centre, executive director Robert Lattanzio says the complaints included in the report are all too familiar. A lot of the clinic’s work around capacity comes from clients who have difficulty accessing services at OPGT, Lattanzio says.
“As I read through the report by the ombudsman, I think our experiences are quite in line. We’ve actually also engaged the ombudsman on some files where we felt we were getting nowhere,” he adds.
At times, the problem is that information is not communicated in an accessible format to clients, says Lattanzio,
“That’s a serious issue we find for a lot of our clients.”
Other times, people have simply been unable to get through to a representative at the OPGT and, as a result, defaulted on payments in their day-to-day lives, Lattanzio adds.
“At the heart of this is something so fundamental — it really is about a person’s autonomy,” he says.
“When someone is under the OPGT, they’ve basically been removed from something we all take for granted. We’re talking about a government body managing property, managing finances on behalf of someone, so we can imagine in our own lives if we don’t have control over that.”
According to Marin’s report, although complaints about the OPGT have dropped by 21 per cent from last year, the kind of concerns complained of has remained the same.
“We have also raised concerns about repeated cases where the OPGT has failed to take appropriate action on behalf of its clients to obtain benefits from other government programs,” says the report. “In one case, it did not submit the necessary transportation allowance forms to the Ontario Disability Support Program (ODSP), causing a woman to lose out on that allowance for 14 months. After Ombudsman staff looked into this, the OPGT agreed to reimburse her $1,799.”
The Ministry of Attorney General did not responded to a request for comments on the report by posting time.
Lattanzio says his impression is there aren’t enough representatives at the OPGT to adequately serve the volume of clients.
Marin’s report also cited other justice-related concerns. In 2014-15, his office received 3,904 complaints about correctional facilities, a slight increase from last year’s 3,839.
The Toronto South Detention Centre, a “superjail” that opened last year, was the subject of 422 complaints, the report says. Those complaints included concerns about “inadequate health care and sick inmates being housed in segregation cells while all four of the facility’s medical units stood empty.”
“In two especially serious cases, we intervened to ensure that inmates who had undergone major surgery could get to an infirmary to receive proper care. The inmates were in severe pain and had been left in segregation cells without adequate medical services,” according to the report.
The ombudsman’s office also saw a sharp increase in complaints regarding segregation placements. It says it found cases where inmates were kept in segregation for months at the time without the benefit of requisite periodic reviews. The report says in the past year, at least three segregated Ontario inmates are believed to have taken their own lives.
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As Legal Aid Ontario expands eligibility for legal aid, it says it will provide new funding to clinics based on the needs of the particular areas they serve.
Today LAO announced it will provide $1.5 million in funding to support legal clinics serving areas with the most number of people living in poverty. The funding is on top of $2.4 million it provided to clinics for the 2014-15 fiscal year, legal aid says, adding it will allow clinics to hire more staff, expand existing services, or launch new services that support clients.
The need-based allocation of funds means so far, clinics like Kensington-Bellwoods Community Legal Services Toronto have seen no increase in funding while the Community Legal Clinic of York Region is getting a 65 per cent boost in financial support.
The allocation strategy recognizes the inequalities in funding to clinics over the years as poverty changed its postal code, says Cynthia Harper, LAO’s director general for the Toronto central district.
“Poverty has moved,” Harper says. “The money is being allocated where the greatest need is.”
In the GTA, this means funding will follow poverty in areas such as Scarborough, Brampton, Etobicoke, North York and Mississauga, according to Harper.
As poverty moved, “Some clinics were finding that they had to serve this great number of people but they didn’t have the same financial resources per low-income person,” says Genevieve Oger, spokeswoman for legal aid. “So legal aid has opted to increase the financial resources of clinics that have the fewest resources per low-income person.”
To determine funding per low-income person in clinics’ service areas, legal aid says it is using Statistics Canada's low-income measure data from 2012 as well as its own funding and population data.
While not every clinic has seen a boost in its funding, Harper notes all legal clinics are eligible to apply for $2.4 million in funding available for joint and co-operative initiatives among legal clinics.
The funding to clinics follows $95.7 million in increased government support for legal aid over three years.
“Thanks to the Ontario government’s move to increase access to legal aid, Legal Aid Ontario can invest in new services for low-income people,” said John McCamus, chairman of LAO. “Ontario's clinics are the foundation of poverty law in this province and we are committed to helping them meet the needs of their communities."
Lenny Abramowicz, the executive director of the Association of Community Legal Clinics of Ontario, also lauded today’s announcement of additional funding.
“Ontario’s community legal clinics, and the communities they serve, welcome this investment of additional funding,” he said. “We applaud the provincial government for its ongoing commitment to improving access to justice, and we look forward to working with Legal Aid Ontario on expanding the availability of community legal services across the province.”
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In what many are calling a controversial and conservative choice, Prime Minister Stephen Harper has appointed Alberta judge Russell Brown to the Supreme Court of Canada, replacing Justice Marshall Rothstein.
|Justice Russell Brown at his swearing in at the Court of Queen's Bench of Alberta in February 2013.|
“I’m a fan,” says Craig Jones, professor of law at Thompson Rivers University in Kamloops, B.C. “I think it’s a great long-term appointment.”
Brown, a former associate dean at the Faculty of Law at the University of Alberta, was a guest lecturer at TRU in February. Jones and Brown share an academic interest in what Jones calls “the very sticky field of causation in tort law.”
Associate professor Margaret Hall of the Faculty of Law at Thompson Rivers University called Brown “a truly outstanding scholar.”
“I have known Russell Brown since young and carefree undergraduate days at UBC. To my delight, we both grew up to become torts professors and became re-acquainted with each other in that professional and intellectual capacity,” she says.
While there’s some criticism that Brown has been a judge for just 2.5 years, others note he’s not the first to have an expedited path to the SCC.
Chief Justice Beverly McLachlin was appointed at the age of 45 (Brown is 50), and both with experience from private practice and academia, says Eugene Meehan of Supreme Advocacy LLP in Ottawa and a former executive legal officer at the SCC.
“With the court’s current workload mainly criminal, he will adjust, but his academic experience of critically analyzing and writing about the law will serve him well,” says Meehan.
He adds Brown’s time as an associate dean will help him in terms of “building relationships and putting out fires.”
University of Alberta law school professor Peter Sankoff says Brown’s varied background will benefit the SCC.
“Anytime someone makes a rapid rise to the Supreme Court there’s always controversy and it’s not unprecedented,” says Sankoff. “Sometimes having someone who has done a lot of different things and then moves to the judicial ranks in a short time can bring different perspectives to the bench.”
Sankoff, a professor and author of criminal law, wouldn’t comment on whether Brown has “conservative” leanings, saying rather he sees him as “a guy with an open mind.”
“I’ve read a lot of his decisions on the bench and I’m reluctant to peg him as an ideologue of one sort or another,” he says. “What surprised me was how rigorous and well thought out a lot of his criminal law decisions [are]. It doesn’t’ mean I agreed with every one of them but at the end of the day I couldn’t deny they were well thought out.
“He is a hard working guy. I think he has a strong will and strong thought about things but I know he’s open.”
Brown was appointed to the Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also serves as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut. He previously served on the Court of Queen’s Bench of Alberta.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
Brown’s appointment has also raised eyebrows in part due to his connection as an adviser in 2012 to the Justice Centre for Constitutional Freedoms, a conservative legal group.
“He was a very well regarded lawyer and he is an excellent teacher,” says Jones. “What makes him a great judge is he is an extremely down to earth, pragmatic, very human guy and he brings that, notwithstanding people’s concerns about this or that connection to the JCCF.”
Sankoff says judicial labels get thrown around a lot and there are different types of conservatives. His view is Brown has a “healthy respect for judicial precedent” which he says is the traditional view of a conservative.
“He has a healthy respect for the rule of law and precedent and that’s a welcome trait to add to the Supreme Court. That is what conservative used to mean. That can be both good and bad.”
Jones predicts Brown will be “leading some advances in less spectacular but very important areas of the law” such as tort law.
“While it [tort law] hasn’t been neglected, the approach of the Supreme Court of Canada has been tentative and inconsistent. I think he has a very strong understanding of the sort of ebbs and flows of the tort jurisprudence and a way of harmonizing it into a concept that serves social objectives and maintain some intellectual integrity,” he says.
“He has a really good way of boiling things down to common ideas and looking through threads of cases for some sort of conceptual integrity and often nails it.”
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Fresh off a victory in having a disciplinary hearing go ahead against an Edmonton officer alleged to have improperly targeted a local defence counsel, two lawyers have launched a complaint against a sergeant whose text messages to his colleague played a key role in the case.
“I do think it’s a big deal when lawyers are getting arrested because they’re not well-liked by the police,” says Erika Norheim, who’s counsel for Chady Moustarah, the defence lawyer allegedly targeted by police, and Aleksandra Simic, another lawyer present at the time of the 2011 incident.
In the latest development, Norheim has filed a complaint on Simic and Moustarah’s behalf against Edmonton Police Service Sgt. Dana Donald, who was among a group of lawyers gathered at a lounge in Edmonton on April 9, 2011.
According to the complaint sent to police Chief Rod Knecht this month, Donald sent a text message that day to Const. Adam Woodburn advising that Moustarah had been drinking and was about to drive away from the lounge. Woodburn had arrested and charged Moustarah with obstruction of justice a few years earlier for giving someone advice on his right to silence. The Crown had stayed that charge in December 2009.
After getting Donald’s text messages, Woodburn, who was working undercover at the time, tracked down Moustarah at another venue, arrested him, and took him to a police station for a breath test. He didn’t administer a roadside alcohol-screening device and ultimately chose to forgo the breath test at the station. Instead, Woodburn issued the lawyer a roadside licence suspension under the Traffic Safety Act.
In 2014, Knecht dismissed a complaint about Woodburn’s actions. Simic appealed to the Alberta Law Enforcement Review Board, which earlier this month ordered police to conduct a disciplinary hearing on charges of unlawful or unnecessary exercise of authority and discreditable conduct.
Now, Moustarah and Simic are complaining that Donald’s actions in 2011 amount to engaging in corrupt practice.
“Sgt. Donald did not, and could not, have sincerely believed that Mr. Moustarah was driving while intoxicated,” Norheim wrote in the complaint. “Rather, we submit that it is apparent that Sgt. Donald made these statements to Cst. Woodburn to tease or otherwise provoke Cst. Woodburn rather than because he held a sincere belief that Mr. Moustarah was about to commit a criminal offence. . . .”
The complaint cites the fact there was no suggestion Donald made any attempt to see if regular patrol officers were available to make a traffic stop rather than someone working undercover, such as Woodburn.
“The personal advantage in this case was for Sgt. Donald’s own entertainment or amusement or, alternatively, retribution on the part of Cst. Woodburn,” wrote Norheim, citing Donald’s alleged motivation.
The letter notes that during an interview, Donald expressed an opinion that Moustarah had had four or five drinks that evening. Woodburn, however, had at one point said Donald told him in the text messages Moustarah had had six drinks.
“If Sgt. Donald did indeed inform Cst. Woodburn that Mr. Moustarah had consumed six drinks, this would amount to ‘deceit’ . . . as it was a false, misleading or inaccurate statement made willfully or negligently,” wrote Norheim in the complaint.
Norheim says there are other troubling aspects to the case, including what she alleges was the apparent destruction of the text messages exchanged between the two officers.
“Woodburn was never even asked for them.”
She notes in her letter she was able to proceed with the more recent complaint following information revealed in Knecht’s disposition letter on the complaint against Woodburn in 2014 and says another set of allegations are in the works over what happened to the text messages.
She says in regards to information received as part of the record in Simic’s appeal to the Law Enforcement Review Board, she believes she’s no longer subject to an implied undertaking and can move forward with the additional complaint now that the appeal body has released its decision.
Norheim says the case is reminiscent of the famous Overtime case in Edmonton in which police officers landed in hot water for attempting to target a local newspaper columnist and the chairman of the police commission in an impaired driving sting. The incident led to a series of lawsuits, disciplinary hearings, and appeals.
“It’s very similar to Overtime,” says Norheim, saying the case involving Moustarah and Simic has flown under the radar.
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