Legal Feeds Blog
RCMP may have broken law during terror sting: B.C. judge, Canadian Press
Sen. Mike Duffy expected to take stand as trial resumes, Canadian Press
In what he called a “bizarre and lamentable” motion, an Ontario Superior Court judge has taken the “extra-extra ordinary” measure of awarding $70,000 in advance costs to an aboriginal woman seeking to bring a class action on behalf of the former students of Fort William Sanatorium School.
There’s evidence that aboriginal children who needed hospitalization for tuberculosis were sent to a sanatorium and schooled Fort William Sanatorium School, said Justice Paul Perell, but the school is not among the recognized residential schools under the Indian Residential Schools Settlement Agreement, a contract signed in 2006.
Henry is seeking to have the Northwestern Ontario school listed as a residential school under the agreement, but Canada argues the sanatorium, while residential, was a health facility and therefore the responsibility of a board of directors first, and later, the Province of Ontario.
Lawyers and non-profits refuse to take up cases like this one because of there is no established process to obtain remedies for students who went to schools like Fort William Sanatorium School. Getting those institutions recognized as residential schools is onerous and costly.
“It is a lamentable motion, because, for a variety of reasons, ‘nobody’ was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the [request for direction]. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined,” Perell wrote.
“In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.”
Henry — who is 82-years-old, disabled, unemployed, and impoverished — could not by herself bring the request for direction under IRSSA. Edward Sadowski, a researcher who has helped up to 1,000 aboriginal claimants with respect to claims under the IRSSA, filed the request on her behalf but failed to obtain legal assistance to advance it.
The motion was “bizarre,” according to the judge, because the very question of who was bringing it was in dispute. Canada argued Sadowski, who is not aboriginal and did not attend a residential school, was the person bringing the application and seeking advance costs.
But Perell disagreed. “Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me,” he wrote.
“In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice,” Perell added.
He ordered the federal government to pay Henry $70,000 in advance costs as well as the cost of the motion.
Christa Big-Canoe, legal director at Aboriginal Legal Services of Toronto, says Perell’s ruling is “a significant win.”
“It speaks to the need to recognize that things don’t always fit into a box laid out in a settlement agreement,” says Big-Canoe. “It speaks to recognizing there are more survivors of this type of colonial legacy and it will provide an opportunity for those survivors to at least have their day in court.”
Big-Canoe says aboriginal students were, at times, sent to sanatoriums for being unco-operative, deemed “insane,” or otherwise sick. In some cases, the residential schools they attended before going to a sanatorium would take their names off the attendance roll, leaving them with no record of having attended a recognized residential school.
In some cases, the students only ever attended sanatorium schools, and “atrocities” have taken place in those schools as well.
“It becomes a Catch 22; they’re not being recognized,” she says.
Big-Canoe says while unfortunate, it’s understandable that both private practitioners and non-profits like her organization are reluctant to take up cases like Henry’s. When a person is seeking to have a school recognized officially as an Indian residential school, there are huge disbursement costs as well as dozens of hours of work with no guarantee of success, she says.
From a non-profit perspective, “we would be putting out all that money and time and the reality is if the process isn’t going to accept the claimant’s application, it’s money that could have been used for a person who would fit within the claim parameters,” adds Big-Canoe.
According to Perell, the case is an example of a “pandemic” issue in class proceedings as well.
“In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases,” he wrote. “The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.
“I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems,” Perell continued.
“The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.”
Price-fixing charges against Nestle Canada are stayed, Canadian Press
The Law Society of British Columbia has wrapped up its 2016-2017 bencher elections and the results are in. Six new benchers will join the regulator with another 16 re-elected.
|David Crossin becomes the new president of the Law Society of British Columbia.|
Crossin was first elected as bencher in 2009. He is a partner at Sugden McFee & Roos LLP and practises litigation in the area of commercial, criminal, and administrative law and has appeared at all levels of court in British Columbia and the Supreme Court of Canada. He has been recognized as lawyer of the year in the area of criminal defence in 2015.
Van Ommen started his bencher career in 2008 when he won the Vancouver county by-election with 773 votes. Commercial and corporate litigation is Van Ommen’s area of practice at McCarthy Tétrault LLP in Vancouver. Prior to being elected Van Ommen has acted as counsel in disciplinary and credential hearings for the LSBC. He is also a sports enthusiast having managed a peewee baseball team and acted as director of the Delta Gymnastics Society.
Benchers are elected for two years on renewable terms. There were a total of 12,740 eligible voters for nine districts in the province.
A low turnout of just 34 per cent of voters cast ballots in district one — Vancouver — where six candidates were re-elected and four elected for the first time. Two candidates were re-elected in the district of Victoria, which had a 47-per-cent voter turnout. The highest voter turnout was in Kamloops with 57 per cent of eligible voters casting ballots.
First-time electee in the district of Kamloops, notable candidate Michelle D. Stanford hopes to continue advocating for equity and diversity using her new platform. Stanford’s inspiration to run for bencher comes from law society’s president Ken Walker, who is known for his avid advocacy for small firms and mentorship and education for students and young lawyers.
In the districts of Nanaimo, Kootenay, and Okanagan three benchers were elected by acclamation.
Walker acknowledges the years of dedicated service of benchers who will not be returning in 2016. He thanks Joseph Avray, David Mossop, Cameron Ward, Edmund Caissie and Jeevyn Dhailiwal, also naming the outgoing president and Mossop, life benchers.
According to society’s regulations candidates who were not elected have time to apply in writing for a review of the election prior to Nov. 27.
Here is the complete list of elected LSBC benchers:
District No. 1 Vancouver (10)
Sharon D. Matthews
Jamie F. Maclaren
Craig A.B. Ferris
District No. 2 Victoria (two)
Pinder K. Cheema
District No. 3 Nanaimo
Nancy G. Merrill
District No. 4 Westminster (three)
Christopher A. McPherson
District No. 5 Kootenay (one)
Lynal E. Doerksen
District No. 6 Okanagan (one)
District No. 7 Cariboo (two)
District No. 8 Prince Rupert (one)
District No. 9 Kamloops (one)
Michelle D. Stanford
The Fraser Institute says a recent Supreme Court of Canada decision on aboriginal title will expose companies and other private entities to potential litigation only previously brought against federal and provincial governments.
|Ravina Bains says the decision creates uncertainty and additional questions not only for private companies but also First Nations.|
In her study, Ravina Bains, associate director of the Fraser Institute Centre for Aboriginal Policy Studies, looked at the October 2015 Supreme Court decision upholding a British Columbia Court of Appeal ruling that would allow First Nations to file for damages against private entities without proving aboriginal title first.
Bains says the decision creates uncertainty and additional questions not only for private companies but also First Nations themselves. The decision changes the relationship between companies and the federal and provincial governments, to potential litigation between private parties and the courts.
The SCC decision allows two B.C. First Nations to file for damages against mining giant Rio Tinto. The case involves the company’s Kenney Dam, which has been operating for 60 years on the Nechako River in northeastern B.C. It services the Kitimat aluminum smelter, a project supported by the Haisla First Nation.
Rio Tinto recently invested more than $4 billion to upgrade the smelter. The company is operating under a provincial government licence on land it bought from the government in the 1950s.
“This is something that has historically been, in terms of litigation and negotiation, between First Nations and the Crown and now this is opening up a whole other area of litigation against private parties,” says Bain.
“It adds just as many questions for First Nations groups who are rightfully trying to gain aboriginal title on land.”
In order for the First Nations communities to win damages they will have to prove aboriginal title.
“If they are granted aboriginal title will the province of B.C. and federal government recognize that?” says Bains.
“If these communities do choose to go down that path is there a chance they will be in litigation for 20 years like Tsilhqot’in was, then end up gaining damages from Rio Tinto but not having aboriginal title recognized by the government?”
Because the SCC upheld the Court of Appeal decision and said these communities can bring forward a damages claim, Bains says it will be interesting to see if they go ahead and pursue the claim against Rio Tinto or, if the parties will negotiate an out-of-court settlement.
However, one aboriginal lawyer says the decision is not really a game changer, but rather more “a very Canadian; very fair process.” Thomas Isaac doesn’t see it as a “material decision.”
Isaac says he does not believe private parties should be on the hook for damages, at least in respect of a constitutional infringement of rights. There may be nuisance claims, but he says that’s a different issue.
“It’s an important decision but it does not stand that automatically the compensation will flow,” says Isaac, a partner with Osler Hoskin & Harcourt LLP in Calgary.
“It stands for the fact the court had determined — rightly or wrongly — that these claims should be treated like other claims and if proven there could be some damages owing.
“The court is saying you have the right to argue this at some future point,” says Isaac. “Given where the legal developments have gone in this country it’s not surprising.”
In the Fraser Institute’s annual mining survey, Bains says the No. 1 impediment for mining investment in B.C. is uncertainty over land claims.
“This only adds to that uncertainty and it’s not only about potential future investment but projects and investment currently taking place,” says Bains.
Watch for more on this story in the January issue of Canadian Lawyer InHouse magazine.
Trial of Sen. Mike Duffy to resume Thursday, Canadian Press
Katelynn Sampson inquest to hear from Children's Aid Society, Canadian Press
Closing arguments to begin at Guy Turcotte trial, Canadian Press
A new report on the experience of self-represented litigants in summary judgment motions has at least one law professor concerned about unfairness to those unfamiliar with the process.
“They’re pushing on an open door because they know there’s already a bias here,” says University of Windsor Faculty of Law professor Julie Macfarlane of the growing use of summary judgment motions by lawyers acting against unrepresented parties.
Today, the National Self-represented Litigants project released a report on the experience of self-represented litigants in regards to summary judgment motions brought in their cases.
Working with Katrina Trask and Erin Chesney, Macfarlane, who’s director of the project, compared the results of summary judgment motions involving self-represented parties in both 2004 and 2014, the year in which the Supreme Court of Canada released its landmark decision in Hryniak v. Mauldin.
In 2004, the researchers found five cases across Canada involving a summary judgment motion with a self-represented party. By 2014, the number of cases had increased to 61.
All but four of the 2014 cases involved a motion brought by a party with counsel. The success rate of the motions was 96 per cent, a number Macfarlane calls “extraordinary.”
“There is a risk here, and the risk is what we’re trying to report on,” she says.
She cites a concern that parties with counsel are using summary judgments as a tactic against those unfamiliar with the system and who are “completely confused.”
“We need to be more sensitive to the fact that people make mistakes,” says Macfarlane.
“The much deeper problem is a lot of people who are in a legal process now are not managing what they need to do in order to represent themselves properly,” she adds.
The success rate for summary judgment motions was similar even after removing cases in which there were findings that the unrepresented party had been vexatious.
The researchers also looked at Ontario-specific data involving motions under rules 20 and 21 of the Rules of Civil Procedure. Using those criteria, the number of cases involving unrepresented parties was four in 2004 with three of them brought by people with counsel. By 2014, there were 13 such motions with 88 per cent of those brought by represented parties having been successful.
Given the numbers, Macfarlane is calling for some assistance to help unrepresented litigants respond to summary judgment motions.
“In some of these cases, they had literally left off a comma,” she says, raising a concern about access to justice for those without counsel.
Part of Macfarlane’s concern is around judges’ attitudes and potential bias given what she says is their understandable difficulty in dealing with unrepresented parties. But, she adds, it’s unfair to hold such litigants to the same standards as lawyers.
And with several courts considering new summary judgment procedures in light of Hryniak, Macfarlane is urging caution.
“We have to be careful about how we put those new procedures together,” she says.
Police say Peterborough mosque deliberately set on fire, Canadian Press
|‘Once a debt is paid or cleared, that’s it, end of story, and I think that’s a ruling the public can support and understand clearly,’ says Joel Watson.|
Sections of Ontario’s Highway 407 Act frustrate the purpose of financial rehabilitation under the federal Bankruptcy and Insolvency Act, the Supreme Court of Canada ruled in a decision released today.
“In my view, s. 22(4) of the 407 Act is inoperative to the extent that it conflicts with s. 178(2) of the BIA. This provision cannot be used by ETR to enforce an otherwise discharged provable claim contrary to s. 178(2) of the BIA,” wrote Justice Clément Gascon in 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy).
Shibley Righton LLP partner Joel Watson says it’s a welcome ruling that properly upholds the bankruptcy legislation.
“It’s a masterful ruling,” he says.
“The  act is a modern-day equivalent of debtor prisons that says we’re going to virtually incarcerate you until you pay your debts, but you can’t work to pay your debts while you’re incarcerated,” he adds.
“Once a debt is paid or cleared, that’s it, end of story, and I think that’s a ruling the public can support and understand clearly.”
In the original matter, Matthew David Moore had amassed a massive $34,977.06 debt to the 407 ETR Concession Co. Ltd. after using the toll route about 2,000 times between August 1998 and March 2007, according to the agreed statement of facts. He never made payments for the use and in early 2005 and again in late 2006, 407 ETR sent notice to the registrar of motor vehicles, which refused to validate Moore’s vehicle permits when they expired.
Moore filed for bankruptcy in November 2007 and was granted an absolute discharge in June 2011, but 407 ETR continued to seek the costs. He brought a motion before the registrar of bankruptcy and then to the Superior Court of Justice seeking to release his debt to 407 ETR upon satisfying the terms of his conditional discharge order and requested an order compelling the Ministry of Transportation to issue a vehicle permit to him upon payment of the applicable licencing fees by virtue of an operational conflict between s. 22 (4) of the 407 Act and the bankruptcy law.
In a decision in October 2011, the court dismissed the motion and held that there was no conflict in the operation of the acts. According to the agreed statement of facts, that, too, was appealed in late 2013 and the Court of Appeal found that there was no operational conflict between the two provisions. However, the appeal court also found that s. 22(4) of the 407 Act frustrated the purpose of the bankruptcy legislation by denying a vehicle permit to a driver following his discharge from bankruptcy. The court reasoned that one of the purposes of the bankruptcy act was to give discharged bankrupts a fresh start and that the provision of the 407 act that barred Moore from obtaining a vehicle permit was inoperative by reason of the doctrine of paramountcy.
407 ETR appealed that ruling to the Supreme Court on the grounds the appeal court had erred in several areas. Among other things, it argued the appeal court had defined the scope and purpose of the bankruptcy legislation too broadly.
“Gascon’s ruling is ultimately so principled, candid, and helpful and this level of common sense is really needed because it makes the judicial system far more effective,” says Watson.
Paul Bernardo book sparks outrage against Amazon, Canadian Press
Rape kits will finally be available in Squamish, B.C., Canadian Press
Man charged in killing of elderly woman in Toronto, Canadian Press
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