Legal Feeds Blog
Lakehead University has appointed the first indigenous dean of a Canadian law school. The Bora Laskin Faculty of Law, which sees engagement with aboriginal communities as a key priority, says Angelique EagleWoman will begin as dean this May.
EagleWoman has built her reputation as a law professor and legal scholar at the University of
|Angelique EagleWoman will begin as dean this May at the Bora Laskin Faculty of Law.|
EagleWoman said the position at Lakehead is "a dream come true." As someone who grew up in a small community, she says she relates to the law school's commitment to rural and small town practice and admires its particular focus on natural resources and environmental law.
"And of course there's the required curriculum in aboriginal and indigenous law," EagleWoman says. "This is the first law school in the world that has that requirement. To have a law school that has integrated this into its curriculum and has mandated that every law student who graduates knows the legal history is phenomenal and that really excited me."
All law students at Lakehead are required to take a course in indigenous legal traditions in their first year and an aboriginal law course in second year.
EagleWoman replaces founding dean Lee Stuesser, who resigned in June.
The legal community is applauding EagleWoman’s appointment. Lorne Sossin, dean of Osgoode Hall Law School, says EagleWoman’s appointment is a sign of promise.
“I hope this is the trend in law schools across the country, both in advancing new voices and new perspectives, and in clearly taking to heart the mandate all law schools should have,” Sossin says, adding it’s important to “look for people who can bring that first-person perspective from the areas we care about most, including the engagement of the indigenous community.”
Other members of the legal community took to Twitter yesterday to celebrate EagleWoman’s appointment. Lawyer and academic Kyle Kirkup said was “an exciting day for legal education” and Janet Minor, treasurer of the Law Society of Upper Canada, tweeted EagleWoman is “an exceptional choice.”
“Angelique was at the top of our list and we are thrilled she’s coming to Lakehead,” said Moira McPherson, Lakehead’s provost and academic vice-president. “Her diverse experience and knowledge will be of great benefit to our students in the faculty of law and to Ontario when those students begin practicing law.”
Woman dead, another injured in Burlington, Ont. crash, Canadian Press
Dog dead, two people injured in Toronto crash, Canadian Press
The widow of geologist Michael J. Fitzgerald believes the collection proceedings currently wrapping up in the Supreme Court of British Columbia will hopefully be the end of a 16-year legal battle involving court cases brought by Vancouver-based mining exploration company Mountainstar Gold Inc. against her late husband and his estate.
Over the course of 16 years, courts have cleared Fitzgerald of accusations that he acted improperly in staking mining claims that eventually resulted in the discovery of the Barrick’s Goldstrike property in Nevada — one of the world’s richest gold deposits.
“There is no doubt whatsoever that Mike has been cleared of any improper actions,” said Marissa Fitzgerald in a news release issued today.
Judges have repeatedly rejected Mountainstar’s allegations and ruled in favour of Fitzgerald.
She adds Mountainstar made several announcements touting the financial gains they expected from the lawsuits.
“They failed in those and they have also failed to pay what the courts ordered against them for costs.”
The current action against Mountainstar in the B.C. Supreme Court has been brought by the Fitzgerald Trust. It is seeking to enforce U.S. court-ordered judgments for legal costs.
U.S. courts held that the continuing legal actions brought by Brent Johnson, as president of Mountainstar Gold Inc., were vexatious and brought in bad faith.
According to court documents, a claim by Mountain-West Resources in the B.C. Supreme Court in 1999 was based on events that occurred nearly 25 years ago in 1975 when Fitzgerald was president of Cobre Exploration Ltd. Cobre later changed its name to Mountain-West Resources Inc., and is now known as Mountainstar Gold Inc.
Cobre was a Vancouver Stock Exchange-listed exploration company that had run out of money and was essentially dormant. The company could not pay Fitzgerald and he was forced to look for other opportunities to earn a living.
In July 1975, Fitzgerald became part of a syndicate to prospect for precious metals in Nevada. He eventually staked a number of claims for the syndicate, subject to a net carried interest that was part of the compensation for his services. The syndicate was formed and financed separately from Mountainstar.
In the late 1980s, further work on the property resulted in it being developed into a mine. The net carried interest that Mike Fitzgerald had earned became valuable as a result.
In 1999, when Fitzgerald retired from Mountainstar, the company’s new management, headed by Johnson, sued Fitzgerald alleging he had breached fiduciary duties by working with the Nevada syndicate on his own behalf.
Mountainstar pursued and instigated claims in courts in British Columbia, Nevada, Arizona, Wyoming, and Washington State. In every case, including appeals to higher courts, the claims were rejected.
In 2005, the B.C. Court of Appeal found that Mountainstar’s claims suffered from a “fatal weakness” — there was “no evidence” to support them. Yet Mountainstar went on to sue after that directly and indirectly, in the U.S. where courts ruled the company had made “meritless” claims first against Fitzgerald and later against his estate. At one point, Mountainstar alleged the claims made in the U.S. courts were worth $1.65 billion. The U.S. courts held that actions brought by Johnson, on behalf of Mountainstar, were vexatious and brought in bad faith.
On Nov. 10, 2015, the Fitzgerald Trust filed a complaint with the British Columbia Securities Commission calling for an investigation into the litigation, Mountainstar and Johnson’s involvement in it.
Canadian securities lawyers were busy during the holiday season responding to the federal government’s draft regulations for the co-operative capital markets regulatory system, which was released in late August with a 120-day comment period.
|More than 25 of the country’s top securities lawyers had input into the CBA/CCCA response to a draft on co-operative capital markets regulation. (Photo: Mark Blinch/Reuters)|
“There is a lot of interest in this across Canada,” noted Hendrickson, founder of BAX Securities Law in Toronto.
She said at this stage, “in my view, it’s mostly a clean up and harmonization. There were things in here that people were looking to change for a while.”
The co-operative capital markets regulatory system is the federal government’s politically sensitive move to create a national securities regime, following the Supreme Court of Canada’s ruling in Reference re Securities Act, 2011.
That case held the federal government’s then-proposed law — the Canadian Securities Act — didn’t pass muster under the Constitution’s federal trade and commerce provision because it infringed on provincial powers.
The Supreme Court, however, left the door open, suggesting that a “cooperative approach that permits a scheme recognizing the essentially provincial nature of securities regulation while allowing Parliament to deal with genuinely national concerns remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial governments in other fields of activities.”
Now, B.C., New Brunswick, Ontario, Prince Edward Island, Saskatchewan, and the Yukon have entered into a memorandum of understanding to create a uniform “capital markets act” and operate a single independent “capital markets regulatory authority.” A proposed “capital markets stability act” is also in the works, though it wasn’t included as part of the August comment package.
Noticeably absent from the initiative are Alberta and Quebec, both of which opposed the federal government’s initial effort. Quebec is again resorting to a court challenge of the proposed new regime.
As is the case with securities law reforms, the CBA response was very technical and specific in nature, responding to a wide range of questions posed by the CRMA. It touched on everything from the definitions section of the act to disclosure, proxies and derivatives.
That’s no surprise as the CRMA is essentially crunching six securities acts into one and creating accompanying policies and regulations.
One area of concern raised by the CBA involved discretion of the regulator to issue a receipt for a prospectus. “We generally support consolidation of such sections,” the CBA report noted, however “we urge caution with the discretion provided the chief regulator.”
The lawyers also welcomed importing an Ontario rule restricting use of prospectus exemptions involving restricted shares without approval of minority shareholders. However, the CBA noted that “because this will be a substantive change for unlisted reporting issuers in CMR jurisdictions other than Ontario, we suggest that fact be stated explicitly in a future CCMR publication.”
The group is also calling for more clarity on what constitutes an “indirect distribution” of a security, noting that proposed CMRA policy 71-601 “presents a departure from the current Ontario practice for non-reporting issuers. The scope of the concept of ‘indirect distribution’ is broad. It could potentially include almost any initial issuance and subsequent resale of a security that may end up being traded in Ontario. In our view it would be useful to provide more guidance on the concept of ‘indirect distribution’ through commentary and examples.”
The CBA report also cautioned the CMRA about access to derivative markets. “While at this stage we support the approach under the CMA to adopt the provincial securities derivatives regime, securities regulators should continue to work closely with foreign regulators to adopt harmonized rules to provide Canadian market participants with continued access to international markets.”
Hendrickson said Canada has been talking about creating a national securities regime since the 1960s and this is simply a step towards that. “Any harmonization is good.”
However, she said the real challenge lies ahead in figuring out how the pieces of the puzzle fit together between CCMRS jurisdictions and non-CCMRS jurisdictions. “How is this going to work with provinces that are not participating?” she asks.
That’s the next round. The CMRA notes in its August proposal that neither its draft act nor its regulations “establish an interface with non-participating jurisdictions. We expect that an interface will be agreed upon with non-participating jurisdictions.”
As well, participating jurisdictions will be issuing for comment a “harmonized set of prospectus exemptions that strike an appropriate balance between access to capital and investor protections.”
Hendrickson says the big question is “how far are they going to extend their reach? That impacts how they are going to interact.”
“They are going to come out with something on that this year. All we can do is wait. There is no use speculating.”
This week, the Supreme Court of Canada will begin its winter session of hearings. The court will get off to a busy start with six appeals including: an extension request for the assisted dying legislation; the right to engage with regulatory bodies; minimum sentences for drug offences; burden of proof in workers’ compensation claims; the cumulative value of circumstantial evidence; and the “mistaken belief” defence in sexual assault cases.
Jan. 11 – British Columbia – Carter v. Canada
Charter of Rights: Last year, the SCC ruled in favour of Lee Carter, who joined with others in challenging provisions in the Criminal Code against assisted suicide and euthanasia. The court issued a suspended ruling that required Parliament to draft constitutionally sound law by February. The SCC will review federal lawyers’ request for a six-month extension.
Read the SCC decision
Related news stories:
Supreme Court rules Canadians have right to doctor-assisted suicide, The Globe and Mail
Jan. 12 – Alberta – Ernst v. Alberta
Charter of Rights: Jessica Ernst sued EnCana Corp., the Alberta government, and the respondent Energy Resources and Conservation Board, alleging that EnCana’s hydraulic fracturing has polluted the aquifers feeding her water supply and that the province and its regulators failed to protect the environment. Ernst also alleges the board refused to accept communications from her as long as she issued public criticisms in the media. On appeal, Ernst argued the board, by attempting to censor her comments, breached her freedom of expression. The appeal court, however, found the board was granted statutory immunity from such charges. The SCC will review the parameters of that immunity.
Read the Alberta appeal court decision
Related news story:
Court won’t let Alberta quash landowner fracking lawsuit, Calgary Herald
Jan. 13 – British Columbia – Lloyd v. R.
Charter of Rights: The appellant was convicted of drug possession for the purposes of trafficking. The sentencing judge found that provisions within the Criminal Code mandating a minimum sentence of one year constituted cruel and unusual punishment, and found the legislation to be of no force and effect. On appeal, the sentencing decision was set aside. The SCC will determine whether the mandatory minimum breaches the Charter of Rights.
Read the British Columbia Court of Appeal decision
Related news story:
Judges won’t hear challenge of mandatory minimums, The Globe and Mail
Administrative law: The tribunal’s appeal involves the case of three laboratory technicians who contracted breast cancer and applied to the Workers’ Compensation Board for benefits. The tribunal found that the technicians had met the burden of proof in establishing a causal connection between their employment and their medical conditions. On appeal, however, the court determined the evidence was insufficient. The SCC will decide whether the tribunal is required to find a sufficient causal connection or whether any causal connection will do.
Read the British Columbia Court of Appeal decision
Jan. 15 – Alberta – Seruhungo v. R.
Criminal law: The appellant was originally acquitted of a manslaughter charge, after the trial judge found the Crown’s key witness to be unsavoury. The Crown acknowledged this and entered 19 items of corroborating evidence. The trial judge reviewed each piece independently, not cumulatively, and found them to be of no confirmatory value. The trial judge, in addition, refused to allow text messages to be entered into evidence, deeming them hearsay. On appeal, the court found the trial judge to have erred and ordered a new trial. The SCC will review the scope of confirmatory evidence in such cases. A publication ban is in place.
Read the Alberta Court of Appeal decision
Related news story:
New trial for accused Edmonton killer, Edmonton Sun
Jan. 15 – Alberta – Spicer v. R.
Criminal law: The appellant was accused, along with his two friends, of sexually assaulting a woman in the park. He was acquitted at trial after presenting evidence from a police interrogation where he claimed the woman was heavily intoxicated and invited the encounter. The acquittal was quashed and a new trial ordered after the appeal court determined the accused had not taken reasonable steps to assure the victim was consenting. One judge offered a dissenting opinion, suggesting there was reason to conclude the accused had mistakenly inferred consent. The SCC will review the “mistaken belief” defence. A publication ban is in place.
Read the Alberta appeal court decision
Related news stories:
Serious police discipline cases often handled in secret, The Toronto Star
Police investigate shooting death of man in Ottawa, Canadian Press
Fredericton transit workers vote to strike, Canadian Press
The Supreme Court of Canada’s winter session kicks off next week, with hearings that deal the usual assortment of criminal and business matters, and the occasional Charter challenge. This season, the top court is focusing on procedural and evidentiary issues, although there are plenty of high-profile criminal appeals on the schedule.
First order of business this session is a request by federal lawyers’ to extend the 12-month deadline for assisted-suicide legislation after the landmark Carter ruling of February of last year. Opposing them is the British Columbia Civil Liberties Association, which is arguing that an extension would punish patients suffering with intolerable conditions.
Also in the first week, the SCC will be reviewing the value of cumulative evidence in Seruhungo v. R. The appellant here was originally acquitted of manslaughter, after the trial judge assessed the independent value of 19 pieces of corroborating evidence. The Alberta appeal court ordered a new trial after finding that, despite their being no single piece of conclusive evidence, the cumulative value of all the corroborating evidence should have been taken into account.
On Jan. 18, the top court will wade into the murky waters of judicial independence, and the compensation of judges. The applicants in Conférence des juges de paix magistrats v. Quebec are justices of the peace who argue that new provisions under the Courts of Justice Act that reduce their compensation have the effect of compromising judicial independence.
Another Quebec-based legal-industry case will be heard on March 24, in Chambre de l’assurance de dommages v. Aviva Insurance. Here, the appellant is a regulator that was pursuing an ethics inquiry against a claims adjuster. The respondent, however, used solicitor-client privilege to withhold certain documents. That leaves it up to the SCC to determine whether the relevant provincial legislation affords such protections.
Overstepping their authority?
In March, the court will be hearing arguments for a couple of peculiar cases where the courts and regulators may have crossed the line.
The first, set for March 23, is Edmonton v. Capilano Shopping Centres. A shopping mall challenged its tax bill of $31 million and was upwardly reassessed for $41 million. On appeal, the court found the City of Edmonton had gone beyond its authority to review the appeal and instead “cross-appealed” its own assessment. The decision will no doubt have huge ramifications for business.
The second, a case out of British Columbia, Anthony-Cook v. R., involves a manslaughter conviction wherein the defence and Crown made a sentencing deal for 18 months with no probation. The judge, however, rejected the joint submission and imposed a sentence of 24 months with three years’ probation. The Supreme Court will review the test that should be applied when deciding whether to accept such a plea deal.
Sex, violence, and privacy
The SCC will also be called upon to rule on a few criminal cases that will be sure to polarize public perceptions.
In Spicer v. R., set for Jan. 15, the court will review the contentious “mistaken belief” defence for sexual assaults. The case involves a man who was convicted of sexual assault, but argues the victim was heavily intoxicated and invited the encounter. The SCC will review whether the mistaken belief of consent is a legitimate defence.
Finally, on Feb. 24, the SCC will weigh privacy against the public interest in a child pornography case emanating from Alberta. In R. v. Villaroman, the respondent was convicted after he brought his computer into a repair shop, where the technician stumbled upon the illicit content. Here, the SCC will determine whether Charter protections are applicable in such circumstances.
The Canadian Judicial Council has been forced by the Alberta Attorney General Kathleen Ganley to launch an inquiry into Federal Court Justice Robin Camp’s conduct during a 2014 sexual assault trial.
|Complainant Elaine Craig says Ganley’s actions are welcome in ensuring a more efficient investigative process of the judge.|
“I think her decision is a positive development because it will make the process more efficient,” says Elaine Craig, an assistant law professor at Dalhousie University and one of four law professors who filed the initial complaint to the CJC after reading Camp’s ruling in R. v. Wagar.
She says she was pleased to hear Ganley’s decision to step up the inquiry because of the potential harm to public perception of the judicial system.
“I think it’s warranted under the circumstances,” says Craig.
“The reality is sexual assault complainants continue to report a fear of the criminal justice process. Cases like R. v. Wagar, and the now well-known statements made by Camp in that proceeding, most certainly do not help to alleviate this problem.”
Craig and her peers filed a complaint with the Judicial Council against Camp for his comments during the 2014 Provincial Court of Alberta trial in which a 19-year-old woman accused a Calgary man of sexually assaulting her during a house party. Their complaint states Camp was contemptuous of sexual assault laws and rules of evidence, going as far as to ask the complainant “why couldn’t you just keep your knees together” and why she didn’t explain to the court better “why she allowed the sex to happen if she didn’t want it?”
Camp acquitted the accused following the trial, but that decision was overturned on appeal.
The appeal court ruled Camp’s comments gave rise to doubts about his understanding of the law governing sexual assault, the meaning of consent, and restrictions on evidence of a complainant’s sexual activity.
By the time the appeal ruling had been released last fall and the issues came to public light, Camp had been promoted to the Federal Court. He has since been barred from hearing any matters until the inquiry is complete and was ordered to take sensitivity training.
“As we wrote in the complaint, our review of the transcript in R. v. Wagar led us to the conclusion that this was conduct that would warrant removal,” says Craig. “It will be up to the inquiry panel to decide, based on all of the information, whether they agree.”
Camp issued an apology in November, following the announcement by the Federal Court he was to undergo the training, stating.
“I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people. My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter,” he said.
The CJC says federal Justice Minister Jody Wilson-Raybould has been invited to designate one or more lawyers to the committee that will otherwise be comprised of judges who are members of the council. The council says the committee’s composition will be made public once it is in place. The hearings will be public.
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