Legal Feeds Blog
Psychiatrist convicted of molesting court-ordered patients faces sentencing today, Calgary Herald
B.C. tour bus company faces another lawsuit over deadly crash last month, Vancouver Sun
Bitter neighbour feud ends with criminal trial thrown out of court, Toronto Star
Lawyers for Guantanamo prisoners call for prison sleep over, Reuters
Cuban who defected to U.S. to play baseball comes home under more liberal travel laws, Reuters
New blow to ties as Russia tosses law enforcement deal with U.S., Reuters
Saturday marks formal charges against gang rape accused, official start of contentious trial, Reuters
The events of the case in SAIA v. Carleton University took place in February 2009 when the Students Against Israeli Apartheid, a club at the school, tried to publicize Israeli Apartheid Week with about 100 posters around campus. The posters depicted an image of an Israeli helicopter gunship aiming a missile at a Palestinian child holding a teddy bear.
The school’s equity services department received several complaints including one brought forward by Hillel, a Jewish student group, regarding Jewish students who were feeling threatened by the posters.
At the same time Carleton’s administration was aware of recent events at York University where there had been large, heated demonstrations, including confrontations between the SAIA and Hillel groups, and situations requiring security and police to intervene.
The incident occurred at the same time similar activity was occurring at other Canadian universities related to the Palestinian-Israel conflict, in particular when Israel was engaged in a military offensive in Gaza with casualties and an attack on the Islamic University of Gaza.
University staff removed the posters and made a decision not to permit such postings on campus.
SAIA alleged the actions of the school were unjustified and discriminatory. It argued the poster was lawful and protected speech under s. 13(2) of the Human Rights Code and that by banning the poster, the university infringed its rights. The group argued the school was motivated by a preference for concerns expressed by Jewish students over the rights of Palestinian students.
SAIA also alleged that an e-mail from Carleton’s provost circulated to the entire university community unfairly targeted the group.
For its part Carleton argued its actions were a justified response to safety concerns and the actions were not related to the grounds of discrimination under the code.
“While the ability to engage in lawful political activity and free expression of political opinion are fundamental rights in Canadian society, and may be the subject of other laws or policies, they are not proscribed grounds of discrimination under the code. To the extent the applicant argues that, as a human rights advocacy organization, it was denied a right of free political expression, as legitimate as that claim may be, it is outside the scope of the tribunal’s jurisdiction,” tribunal adjudicator Michael Gottheil said in his decision.
He found the school had not violated the student group’s rights under the code and that the school’s president did not demonstrate an anti-Palestinian, pro-Israel bias.
In his decision Gottheil said: “SAIA called no evidence with respect to these allegations. Accordingly, I have not considered these allegations, except to note that there is no direct evidence before me of the respondent having an anti-Palestinian bias.”
“I am satisfied that the respondent had a good faith concern about student safety, and the possibility that the situation on campus might further deteriorate,” said Gottheil, noting that reported incidents to the equity services department warranted a response to the posters.
Privacy commissioner says mobile chat app WhatsApp violates Canadian law, Toronto Star
Fired guard in Smith case allowed to resign after prosecution drops criminal charges, The Chronicle Herald
Jury find Calgary psychiatrist guilty on three charges of sexual assault, Vancouver Sun
Federal appeals court reinstates lawsuit brought by transgendered prisoner, Reuters
First woman in two years to be executed after appeals court upheld her conviction in 2004, Reuters
EU's foreign policy chief concerned over lack of fair trial for executed activists in Iran, Reuters
Former Guatamalen dictator, 86, has appeals rejected, trial ordered, Reuters
In Drover v. BCE Inc., Justice Gordon Weatherill took issue with the fact Merchant’s firm, the Merchant Law Group LLP, attempted in 2004 to serve the writ of summons and statement of claim by fax. In the meantime, the firm continued to move ahead with a similar class action over system-access fees in Saskatchewan while letting the B.C. matter remain idle until Nov. 9, 2012. The Saskatchewan courts allowed the matter to go ahead on the basis of unjust enrichment only and any B.C. resident can join that case in an opt-in basis. None of the allegations have been proven in court.
The latest B.C. ruling dealt with the plaintiffs’ bid for a declaration that the defendants had been validly served with the writ of summons and statement of claim back in 2004. Alternatively, they sought permission to be able to now serve the statement of claim.
According to Weatherill’s Jan. 14 ruling, plaintiffs’ counsel maintained that service by fax was fine even as at least one of the defendants challenged the firm on that point. As a result, he rejected the application for a declaration of valid service.
“Neither the former nor the current Rules permit service by way of facsimile,” he wrote.
Weatherill went on to deny the plaintiffs’ application for an order permitting them to serve the statement of claim.
“The plaintiffs have provided no evidence to explain the delay or any evidence indicating that the plaintiffs indeed intend to prosecute this action,” he wrote. “It is reasonable to infer that plaintiffs’ counsel abandoned the British Columbia action many years ago.”
In the end, Weatherill found the case to be one of “exceptional circumstances” allowing him to order costs — in this case against Merchant himself — in a class action.
“In my view, this is an exceptional case. The conduct of counsel for the plaintiffs has caused costs to be wasted through delay and neglect. Plaintiffs’ counsel neglected this action for over eight years. When he got around to dealing with it by bringing this application, he failed to set out the proper relief. Furthermore, the application was not supported by any evidence explaining either the delay or the failure to comply with the rules regarding the need for an endorsement and proper service. Moreover, the application was brought against defendants against whom there was no basis for the order(s) sought. To say that this was and has from the outset been a shoddy piece of counsel work would be an understatement.”
For his part, Merchant tells Legal Feeds he’s appealing both the ruling preventing the B.C. class action from going forward and the costs award against him.
“If lawyers are worried about costs being awarded against them, they won’t be as candid with their clients, they may put their own interests ahead of their clients’ interests,” he says, adding that requiring lawyers to defend their conduct in such scenarios “jeopardizes solicitor-client privilege.”
Merchant also notes he wasn’t the lawyer who pressed forward with the arguments about service by fax.
“What’s wrong in the thinking is there’s nothing to indicate that I had anything to do with the delays,” he says, adding it was another lawyer who had argued the court would accept service by fax as far back as 2004. “Obviously, we weren’t correct. I wasn’t doing that in 2004 and that was nine years ago.”
Apart from the costs issue, Merchant is concerned with Weatherill’s finding that it would be an abuse of process to allow the parties to relitigate the same issues in British Columbia after the Saskatchewan matter goes ahead.
“It’s just not right societally,” he says, noting Weatherill’s approach would put a damper on class actions in opt-in jurisdictions since prospective plaintiffs would have to both know about and choose to participate in a matter elsewhere in order to have a chance at redressing an alleged wrong since the court may not allow the case to go ahead in their home province.
As a result, Merchant says he’ll be pressing ahead with the class action both in British Columbia and across Canada. It’s an issue, he adds, that affects millions of people given the widespread use of system-access fees by cellphone companies.
“There are a lot of important principles in play in this class action,” he says.
Abortion debate still rages 25 years after SCC ruled anti-abortion laws violate women's Charter rights, Vancouver Sun
B.C. men acquitted of human smuggling charges, Toronto Star
Calgary doctor's sexual assault trial sees jurors unable to reach verdict, Winnipeg Sun
9/11 suspects' lawyers request CIA prisons be preserved as evidence, Reuters
Justice Department's Sentencing Commission web site hacked, Reuters
Teen in India rape case to be tried as juvenile, despite victim's family's protests, Reuters
French judge warns small groups are new terrorist threat, Reuters
On Saturday, Jan. 26, the County of Carleton Law Association celebrated its 125th anniversary with a splashy celebration at the National Gallery of Canada in Ottawa.
Photos: Robin Grant
Ashley Deathe and Raymond Murray from Nelligan O’Brien Payne, Alexandra Murray of Health Canada, and Megan Murphy also from Nelligan O’Brien.
Douglas and Ulle Baum from Addelman Baum and Gilbert LLP.
Eugene Meehan of Supreme Advocacy and Superior Court Justice Giovanna Roccamo. Meehan sported traditional Scottish dress with a sporran that is over 100 years old. Roccamo wore a Fred Perlberg 1952 vintage dress.
Ted Mann from Mann & Partners at the podium sang a little jingle about the CCLA at the beginning of the dinner.
The Ottawa bar celebrates 125 years of the Carleton County Law Association.
President-elect Alan McBride and CCLA president Jaye Hooper hosted the evening. They spoke about topics such as CCLA's history and the importance of women in law.
David Thompson, Cheryl Hess, and Jim McIninch from Bell Baker, and Paul McEnery and his wife Nancy from Williams McEnery.
Sarah Saad of Rasmussen Starr Ruddy with her boyfriend Harry Baas, and Angela McLaughlin also from Rasmussen enjoy cocktails early in the evening.
Shahana Khan, a sole practitioner, and Susan Richer from Richer & Richer.
CCLA president Jaye Hooper, Nicol Girard, and CCLA president-elect Alan McBride
Justice Robert Maranger and Thomas Windle from the Windle Law Firm enjoy a laugh prior to the CCLA 125th Anniversary dinner.
|Source: Law Society of Upper Canada|
The committee says the spike is a result of increase in real estate and mortgage complaints, which take longer to process.
“When real estate and mortgage fraud complaints are removed from the investigations inventory, the median age of all other complaints in investigation at the end of 2012 decreased to 239 days,” says the report.
“This is below the department’s median age target of 240 days.”
At the end of the year, the department’s inventory was 937 cases involving 778 subjects, according to the report. This number does not include reactivated and mortgage fraud cases.
About half of the 937 cases were less than 10 months old when the year wrapped up, the committee said, adding some 142 were more than 18 months old.
The committee says cases more than 18 months old are a result of investigators having to wait for evidence from a third party, such as psychiatric evaluations.
Multiple cases involving one lawyer and a complainant about multiple lawyers in related matters are also listed as the reason for the tardiness.
But in the same year, the law society also saw a slight decrease in the number of complaints against lawyers.
The professional regulation division reported receiving 1.7 per cent fewer grievances the last year than 2011.
Complaints related to service issues amounted to 75 per cent of all complaints received by the law society, a trend that hasn’t changed from 2011.
Issues related to integrity and conflict showed a slight increase in 2012 while governance-type complaints decreased by two per cent.
The law society closed 1053 dispositions in 2012, slightly lower than 1201 cases in 2011.
SCC to hear complex case involving native land claims, Vancouver Sun
Man with throat cancer robs bank in desperation, given more lenient sentence by Calgary judge, Calgary Herald
Court hears testimony from witness accusing an anesthesiologist of sexual assault while sedated, The National Post
Prosecutor in Ohio rape case asks for closed trial, Reuters
Catholic bishops to review lawsuit against Catholic hospital who has claimed fetuses are not people, Reuters
Draft laws attempting to legalize gay unions defeated by Polish parliament, Reuters
Legal reform a go in Turkey, allowing Kurdish to be spoken in court, Reuters
|Former ICC chief Philippe Kirsch lends his name to an innovative legal education venture.|
Named after internationally recognized Quebec jurist Philippe Kirsch, the institute is scheduled to be up-and-running within the year, and enable legal professionals to apply the CCIJ’s knowledge of international justice to other areas of the Canadian legal system.
According to Jayne Stoyles, executive director of the CCIJ, the institute was designed to serve a “dual purpose” of providing “legal training to the legal community” as well as utilizing the proceeds raised “to fund the CCIJ’s charitable legal work.”
Often referred to a “social enterprise,” this relatively new business model has been called “innovative” by professionals from the CCIJ’s ability to draw a profit for their social mission.
“It is a really challenging time for charities in Canada, and we’re just finding that our services are overstretching our resources and we don’t want to have to turn anyone away, so we decided to get really creative,” says Stoyles, who adds the idea to create the institute came after the CCIJ began to offer courses on international justice in 2000. “Rather than going as one more charity asking for donations, we thought that we could actually offer our expertise and make some of our own revenue.”
Kirsch is thrilled to be part of the initiative.
“CCIJ has an important mandate to fulfill, serving some of the hundreds of thousands of survivors of atrocities currently in Canada, while contributing to the global effort to send a message to would-be torturers and war criminals that they will face justice,” he says. “The business plan for the training institute has been very carefully prepared, and it is my strong expectation that the training will be highly sought after. This will provide a great service to the legal community in Canada, at the same time that it assists CCIJ in achieving its goals over the long term.”
Stoyles predicts there will be about 30 instructors for the planned 10 courses offered to prospective participants, which will have similar rates to other professional development courses in the market.
Courses are planned to teach participants how international law applies to Canadian legislation, and will include subjects involving civil litigation, immigration refugee law, criminal defence and criminal prosecution. Other planned areas of training include: how to provide services to torture survivors, and how to bring a case before an international body.
Taught by lawyers and judges involved in the CCIJ, including Kirsch, Stoyles promises the courses will provide “very high quality training” with the CCIJ having a number of former and current Supreme Court judges “who have indicated that they might be willing to offer training.”
Although they are priced similarly with other institutes in the market, Stoyles believes the courses offered from the CCIJ come “with the difference, and hopefully the very attractive feature, that for the same fee people are paying for other training, they’re actually supporting this really important charitable legal work for survivors of torture.”
The CCIJ’s aim to have about 60 to 70 participants in each course comes from the realization that there’s “a market” for “continuing professional development in the legal industry.” After conducting preliminary calculations, Stoyles predicts that within five years the institute can draw in between $100,000 to $800,000 in revenue annually.
“We’ve really done our homework,” says Stoyles, who says plans for the institute have been underway for two years.
“I know they’ve gone through many iterations to come up with the right business model, and that perseverance is really a testament to their commitment to try and support their chartable purpose,” says Jonathan Wade, co-ordinator for Ottawa’s Collaborative for Innovative Social Enterprise Development, who over the years, has provided the CCIJ with business support and grants.
Stoyles says the idea for naming the institute after Justice Kirsch came from a combination of his work with the CCIJ and his notable accomplishments dealing with international law. As a member of the CCIJ’s honorary council, Kirsch will serve as a member on the institute’s advisory committee.
Kirsch has chaired negotiations to establish the International Criminal Court in the Hague. He was elected as one of the first ICC judges, as well as the court’s first president. He is a former Canadian ambassador, and has held other high-level posts within the Department of Foreign Affairs.
University of Ottawa law professor Joanne St. Lewis sued former Ottawa physics professor Denis Rancourt for $1 million for libel after he called her a “house negro” on his U of O Watch blog.
Their dispute dates back to November 2008 when the Student Appeal Centre of the Student Federation of the University of Ottawa released a report entitled, “Mistreatment of Students, Unfair Practices and Systemic Racism at the University of Ottawa.”
The report found unfair practices and systemic racism at the university in relation to its procedures for plagiarism and academic fraud. It was written by Mireille Gervais, who has now graduated from the law school. University of Ottawa president Allan Rock asked St. Lewis to evaluate the report. She found there was no systemic racism with the university’s procedures for academic fraud and concluded that Gervais’ findings were not factual.
Rancourt was critical of St. Lewis’ report in a 2011 blog post, calling her a “house negro.”
During the court proceedings, Gervais was called as a witness for Rancourt but refused to answer some of the questions asked by St. Lewis’ lawyer. St. Lewis wanted to cross-examine Gervais to test her credibility and claims Gervais is a partisan supporter of Rancourt. Rancourt argues the questions Gervais refused to answer were irrelevant. St. Lewis then brought a motion to compel Gervais to answer the questions, which Justice Robert Smith accepted.
As a result, Gervais hired lawyer Yavar Hameed to seek intervener status. Hameed requested a copy of St. Lewis’ motion materials, but was told to obtain a copy from the court because Gervais was not an interested party.
But Hameed argues that Gervais was an interested party. “One of the fundamental issues was whether [Gervais] should have gotten notice as an interested party,” he tells Legal Feeds.
In a motion for refusals, where you’re compelling a witness to give evidence and answer questions, the witness will have no choice, he says. “So in that sense . . . [Gervais’] rights are engaged. There’s no question that her s. 7 [Charter] rights are engaged because she will be an interested and affected party,” he says.
In his ruling, Smith described Gervais’ situation as unusual.
“Gervais filed a brief factum in support of her position. The issue of when a witness, who voluntarily files an affidavit in a legal proceeding, may intervene and be represented by separate legal counsel during her questioning is somewhat unusual,” he wrote.
“The difficulty in the judge’s reasoning is that he does not address the issue of her being an interested party,” says Hameed. “Well, actually everything turns on that because the other party never served her with their materials. That — in the lead-up to all of this — could’ve changed the whole progression of how the parties interacted with each other.”
St. Lewis claims Gervais wasted the court’s time by seeking intervener status, so sought costs of $12,768. Gervais claims the costs sought are excessive, but Smith ruled Gervais should have reasonably expected to pay $6,000 in costs if her motion was unsuccessful. So in the end, he ordered her to pay $5,000 plus HST and disbursements of $300 inclusive of HST.
“I find that Gervais’ motion did not raise a point of unsettled law because Gervais failed to identify how her Charter right to free speech would be affected if she was required to answer relevant questions related to her affidavit in a legal proceeding,” wrote Smith.
“If every witness in any legal proceedings was entitled to have separate counsel intervene on their behalf without identifying how a Charter right was being affected, then the whole legal system would grind to a halt.
“I find that Gervais’ rights were not affected by being cross-examined on her affidavit that she voluntarily filed in the legal proceeding because statements made by a witness in a legal proceeding are privileged and a witness cannot be sued for statements made as a witness. Gervais was a voluntary witness in the proceeding and as a result was required to answer relevant questions related to her affidavit.”
At this point, Hameed says he’s unsure if he’s going to appeal the costs award because it will entail more costs.
For more on this story, read the Law Times article “U of O law prof suing colleague over ‘house negro’ remark.”
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Gail J. Cohen