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In a decision released yesterday, the Ontario Court of Appeal has overturned a conviction based on a juror’s conduct, which was ruled to have created a reasonable apprehension of bias.
Derek Welsman, jury foreman in R. v. Dowholis and producer of the since cancelled Dean Blundell show, appeared on the radio show and “made derogatory comments about sexual activity between men,” the decision reads.
|Mark Halfyard says he wouldn’t be surprised if the case goes further because 'there’s such a disagreement between the majority and the dissent.'|
“It is unusual just because factually you don’t often have a situation where the comments made by a juror are essentially on the record and can be used as evidence in court to suggest they at least displayed the apprehension of bias,” says Mark Halfyard, criminal lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.
“It’s just a matter of happenstance because he just happened to be affiliated with this radio show and, therefore, word of the communications got back to the lawyers and they were able to file that material as fresh evidence on the appeal.”
Joshua Dowholis, an HIV-positive man convicted of sexual assault in 2014, will get a new trial due to Welsman’s conduct.
“I have concluded that the conduct of the juror created a reasonable apprehension of bias such that a new trial should be ordered,” said the judgment.
Jill Presser, principal at Presser Barristers and counsel for Dowholis, said in a press release that “the court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward. The court has elevated homophobia to the no-no list in the justice system and that is really significant.”
In the two-to-one decision, dissenting Justice David Doherty argued that the radio show was known to make fun of everything and aimed to be provocative, so comments made in that context can’t be seen as a reflection of the juror’s true beliefs. Although he noted that the remarks were “inappropriate and potentially hurtful,” he goes on to write that “sometimes a joke, even a joke that is offensive, is nothing more than a joke.
“The distinction between comments that are only intended to entertain and comments that provide real insight into the speaker’s beliefs can be difficult to discern,” wrote Doherty.
“I feel my position will be misunderstood, that I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” he wrote, but that is not the concern of the appeal court. A conviction cannot be quashed based on finding a juror offensive, he wrote. That can only happen when the court is “satisfied that the comments demonstrate a reasonable apprehension of bias giving rise to a miscarriage of justice,” a hurdle he did not feel the juror’s comments cleared.
Halfyard calls the disparity a difference of opinion between the judges when it comes to the type of venue in which the comments were made.
“When you’re assessing apprehension of bias, you have to look at the context under which the comments are made,” he says. “If they’re said in a hateful way where you’d actually expect the person to express bias as opposed to jest — I think there’s a real grey area there.”
Doherty did agree that a new trial was needed but on the basis of error in instructions to the jury by the trial judge.
In a detailed decision, Justice Mary Lou Benotto disagreed with Doherty and found that “the reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect and not be publicly ridiculed by the person judging him. I conclude that a reasonable person, knowing all the facts, would apprehend that consciously or unconsciously it was more likely than not that this juror would not decide fairly.”
Benotto writes that Doherty’s reference to racial bias in another court of appeal case, R. v. Parks, at para. 59 applies equally to bias against homosexuals.
“The likelihood that a bias against gay men would affect the juror’s decision-making process is greater given his willingness to publicly disregard instructions, engage in homophobic rhetoric, and mock the court process,” she writes in the majority decision. “The issue is not whether the juror meant what he said. Nor is it whether he was in fact unfair. The issue is the impression that his conduct created.”
In the release, Presser agreed the focus shouldn't be on “whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast" but on upholding the integrity of and appearance of fairness in the justice system.
Halfyard says he wouldn’t be surprised if the case goes further because “there’s such a disagreement between the majority and the dissent.”
Innovation means different things to different people but Angela Nikolakakos, senior vice president, general counsel and corporate secretary with Natixis Global Asset Management Canada, says for her it means the “openness to doing something differently.”
“It’s about doing things faster, cheaper and changing the way I do things so that I get more results for my efforts, and external law firms help with that at every turn, or at least they can if they listen,” said Nikolakakos, speaking last week along with two other general counsel at a Toronto Legal Marketing Association luncheon panel “Legal Innovation . . . Our Clients Expect It” moderated by Lexpert editor-in-chief Jean Cumming.
Nikolakakos recently moved to be the solo in-house lawyer at Natixis from the large legal team at BMO’s asset management group. She pointed out that now she is a legal department of one, innovation “doesn’t have to be fancy or techy; it just has to help me get the things I need done quicker and perhaps cheaper.”
Fellow panel member Marni Dicker, senior vice president and general counsel for Infrastructure Ontario, said that it doesn’t always have to be about faster and cheaper. For her, it’s about the law firm relationship and how that evolves to suit her needs.
“I don’t necessarily want change or innovation, I want law firms to be my partners. I want the lawyers I work with to understand my changing needs. We are innovating inside Infrastructure Ontario and if I am operating in a new way it makes sense absolutely that they do, too,” she said.
“If I am now operating on a fixed-price contract and can only spend X on legal services, I am not going to be interested in an hourly rate fee structure because I might blow my budget before I ever get to the 50-yard line,” she said. “So if I have an extraordinarily fixed budget, as I often do, what I want to do is speak with the relationship manager at the law firm and explain the predicament I’m in, then get some sort of fixed fee or guaranteed maximum fee so we can operate inside of that fee.”
But while Dicker has been able to establish good relationships with firms over time, it seems small departments aren’t always seeing the love from their external partners.
Peter Nguyen, general counsel and corporate secretary with software company Resolver Inc. said the company’s slogan is “Aim big, be great, be loved by customers.” He says in 15 years he hasn’t seen much of that from law firms — it has a one-way relationship. He calls a firm when he has a problem and then doesn’t hear again until the next problem arises.
“We are constantly out engaging our customers on a monthly basis, talking to them and asking ‘What is it you need and what can we do better for you?” he said. “In my last six years as general counsel, in a couple of companies I have yet to have any lawyer sit down and call me in advance and say ‘What can we do for you?’”
Nguyen says Resolver is in its strategic planning phase for the coming year, but the firms he works with aren’t asking about what’s in his playbook for next year for things such as potential acquisitions or financing deals.
“I’m sure the lawyers don’t know that, but if they did they could pull me aside and ask where we plan to be next year. They have no line of sight. I don’t see that interest from external counsel coming to me and pulling that information from me. It’s still all one way,” he said. “With our customers it’s all about two-way conversations.”
Nikolakakos said firms should initiate a visit with her to understand some of the challenges of being solo in-house and in the business she operates in.
“It helps you become a better adviser to me by seeing where I work,” she said.
Nguyen said he and a group of like-minded general counsel are part of a group called the AceTech Legal Roundtable who get together once a month to exchange ideas.
“None of us have seen that kind of thing from external law firms. I would love the opportunity to meet other like-minded individuals. That’s a great opportunity for firms to show some value for their clients and help them in other ways other than pure legal work,” he said.
“Offer us suggestions based on what you see with other clients. It’s lonely out there for general counsel in small departments. I want to know what other organizations are doing for best practices,” he said.
Dicker did call out McCarthy Tétrault LLP for a program it has called Pitch Perfect in which they invited a group of women general counsel and created a professional development session in which the associates and partners practice pitched to the general counsel and general counsel provided feedback on whether they would have won the business in a real scenario.
“That was a great venue for getting lawyers and clients together in a room. We weren’t playing golf or at a hockey game; we were doing professional development that was helping everybody,” said Dicker.
When it comes to pricing, Nikolakakos said the lowest price is not always what she is trying to get to — a fair price with certainty of cost and happy result for both parties is what she really has in mind.
“I want you to keep answering the phone. If you feel I have shafted you or you have taken a loss and are angry about it you’ll stop answering the phone. There has to be overall trust,” she said. “And if you know my business you will be able to price something better.”
Nguyen said that while he is a “low purchaser” of legal services compared to larger companies, it would be nice to have firms approach him with alternatives or ways of adding value.
“I think about how we treat our customers when we go into pitch new customers. We have our traditional licensing model with services and we give away a lot of things for free that are low cost to us and high value for the customer,” he said. “And I think of what law firms can do. It would be great if I could have access to a repository of standard precedents and corporate resolutions that I could access at any time.”
He is considering a yearly subscription for access to “curated and maintained” precedents at about $4,000 for the year (Practical Law).
“If a law firm came and said we will give that to you for free, I would be more inclined to send more complex work their way,” he said. “That’s the kind of stuff I need day to day and I think a lot of tech companies have the same challenges. I think firms would be well served to say ‘You can have this for free.’ It’s low cost to the firm but high value to the general counsel who need it on a daily basis.”
The Supreme Court of Canada has a full roster of hearings this week, with five of six cases being on appeal from the Court of Appeal of British Columbia.
October 31 – New Brunswick – Oland v. R.
Criminal law: The appellant was tried for the second-degree murder of his father by a judge sitting with a jury. Oland was convicted and sentenced to life imprisonment without eligibility for parole for 10 years. He filed a Notice of Appeal against his conviction in the New Brunswick Court of Appeal as well as a motion for release pending his appeal. The motion was dismissed, and later a three-member panel of the Court of Appeal confirmed that decision. Oland’s appeal against conviction was scheduled to be heard before the New Brunswick Court of Appeal in October 2016, and in the meantime he is appealing to the SCC the release pending appeal decision only.
Read the New Brunswick appeal court decision
Related news stories:
Dennis Oland jurors fell victim to circumstantial evidence, appeal alleges, CBC
November 1 – British Columbia – Teal Cedar Products v. R.
Arbitration: The Forestry Revitalization Act, S.B.C. 2003, c. 17 permitted the Province of British Columbia to reduce by 20 per cent the land base and allowable annual cut of forest tenures held by British Columbia forestry companies, including the applicant, Teal Cedar Products Ltd. A dispute arose regarding compensation the Province must pay Teal for the “value of improvements made to Crown land” under the Act. The parties settled Teal’s compensation for the value of the lost harvesting rights but did not agree on the final compensation for the value of the related improvements. The dispute went to arbitration, and the arbitrator awarded Teal $5,150,000 in addition to the $4 million the Province had already advanced to Teal as compensation for the improvements. Both parties applied to the Supreme Court of British Columbia for leave to appeal the arbitrator’s award.
Read a summary of the British Columbia appeals court decision
Arbitration: Under s. 31 of the Arbitration Act, R.S.B.C. 1996, c. 55, the arbitrator had to determine whether the respondent BCNET Networking Society properly and validly exercised its options under the agreement between itself and the applicant Urban Communications Inc. The arbitrator ruled in favour of the respondent finding the options had been properly exercised.
The chambers judge granted leave to appeal, allowed the appeal and amended the arbitrator’s award. The Court of Appeal allowed the appeal and reinstated the arbitrator’s award.
Canadian charter (Criminal): Brendan Paterson was convicted of nine offences: two counts of possession of illicit drugs, three counts of possession of illicit drugs for the purpose of trafficking and four counts of unlawful possession of firearms. He was sentenced to four-and-a half years.
At the trial, a Charter voir dire was held to address Mr. Paterson’s objection to the admission of the evidence seized by police as a result of their entry into and search of his apartment. The trial judge dismissed the application to exclude evidence.
On appeal, the Court of Appeal found no reason to interfere with the findings of the trial judge. It dismissed the appeal from conviction.
Read the British Columbia appeal court decision
Read related news stories:
BC Court of Appeal Declines to Expand Scope of Confessions Rule: R v Paterson, thecourt.ca
November 3 – British Columbia – R. v. Bradshaw
Criminal law: Two people were shot to death five days apart. A co-accused claimed the respondent, Mr. Big, had shot one victim and assisted in killing the other. At the respondent’s trial the co-accused refused to be sworn. The trial judge admitted a recording of the co-accused’s re-enactment of the murders under the principled exception to the hearsay rule, and a jury convicted the respondent on two counts of first degree murder. The Court of Appeal held that the recording of the co-accused’s re-enactment should not have been admitted, set aside the convictions and ordered a new trial on both counts.
Read the British Columbia appeal court decision
Read related news stories:
New trial granted due to hitman’s testimony, Vancouver 24 hrs
Killer tells all to undercover cop, Langley Times
Trial in 2009 double murder underway in New Westminster court, BC Local News
November 4 – British Columbia – Douez v. Facebook
Read the British Columbia appeal court decision
Read related news stories:
Facebook wins appeal to stop B.C. class-action lawsuit over privacy, CBC
Canada’s top court to hear B.C. case against Facebook ‘sponsored stories’ policy, The Globe and Mail
Supreme Court of Canada to hear B.C. woman’s class action against Facebook, Business Vancouver
Lawyers say a $2.5 million class action lawsuit against an auto parts maker highlights the need for employers to alert the Ministry of Labour early when closing down a facility.
|Plaintiff lawyer Stephen Moreau, a partner with Cavalluzzo Shilton McIntyre Cornish LLP, says an auto parts maker neglected to inform the Ministry of Labour of a plant losing.|
Nearly 100 auto parts workers are represented on the lawsuit, which was brought against their former employer, CTS of Canada Co., after it shut down its Mississauga plant in 2015.
The workers recently filed a summary judgment motion against CTS to have their day in court without having to go to trial.
The claim alleged the American car parts manufacturer failed to give them proper notice when it closed down the plant to sell the land and move its operations to Mexico and China.
At issue is whether CTS filed a Form 1 with the Ministry of Labour when the company gave its employees notice the plant would be closing.
Under the Employment Standards Act, employers who lay off more than 50 employees must submit the form to the ministry in order for their notice of mass termination to come into effect.
A copy of the form must also be posted in the workplace on the first day of the notice period in addition to providing employees with individual notice.
“Form 1, even though it’s a technical requirement, it’s part of a scheme that is supposed to apply when you have group notice under the act. It’s an important part of it because it gives the Ministry of Labour notice of what’s happening,” says Landon Young, the managing partner of Stringer LLP, who is not involved in the case.
In their claim, the workers alleged CTS did not file the form, rendering their severance letters null and void.
“What we’ve alleged and I think we’ve clearly proven here is they neglected to actually inform the Ministry of Labour that this plant was closing,” says the plaintiffs’ lawyer, Stephen Moreau, a partner with Cavalluzzo Shilton McIntyre Cornish LLP.
“When you close a plant, you’re supposed to tell the Ministry of Labour so that the labour ministry can get involved and help people reintegrate into the workforce.”
CTS announced the plant would close in Feb. 2014, which was more than a year before the intended closure date. In April of that year, the company gave individual severance letters to its employees, letting them know the plant would stop manufacturing by March 2015.
In their statement of defence, CTS said that the company discovered “its error” in not submitting a Form 1 initially and did so in May 2015, informing the ministry of their plans to close the plant in June.
CTS argued that the fact that the Form 1 was not submitted at the time the severance letters were issued did not void them, as they were only required to submit a Form 1 within four weeks of closure.
“CTS denies that any of the Plaintiffs were wrongfully dismissed,” said the company’s statement of defence.
“CTS states that all of the Plaintiffs received reasonable notice of the termination of their employment and many of them received far greater than reasonable notice of the termination of their employment due to the extended length of the working notice period provided.”
Moreau says the fact that CTS was nearly 13 months late in filing its Form 1 meant that the Ministry of Labour could not conduct the proper employment services for the employees.
“The notice is not a trifling matter,” he says.
Employment lawyers say this case highlights the importance of filing a Form 1 early in the process.
“That’s an essential first step. That’s the first thing we do is we get the client to fill out that form,” says Hendrik Nieuwland, a partner at Shields O’Donnell MacKillop LLP, who is not involved in the case.
Nieuwland says that if the claim is successful, giving workers one year of advanced working notice might have all been for nothing and that the employer might end up having to pay the former employees minimum notice amounts in addition to the year of work they completed.
Kristin Taylor, of Cassels Brock & Blackwell LLP, who has represented CTS in the class action proceedings, declined to comment, as the lawsuit, which was certified in January, is ongoing.
The plaintiffs expect their summary judgment motion will be heard in July 2017.
British Columbia’s new superintendent of real estate Michael Noseworthy has made it clear that lines have now been drawn between his office and the real estate industry as he took control of the office Oct. 19 overseeing the public's interest in what has become B.C.'s most controversial industry.
“My job is to represent the public and protect the public and act for the public and their best interests,” says Noseworthy, a lawyer and government regulator, who takes on the over-sight role of the real estate industry and its regulatory body, the B.C. Real Estate Council.
Noseworthy's consumer protection stance continues the hard line taken by Premier Christy Clark when the Liberals became embroiled in real estate controversy for failing to provide the needed regulation framework to stop shadow-flipping by real estate agents. Clark responded by passing a law to prohibit it, implementing tough new financial penalties for realtors and the firms, dismissing the board members of the Council, removing the real estate industry's right to self-regulate, and creating Noseworthy's full-time position.
Noseworthy arrived in B.C. from the Yukon where he served as a senior government regulator, holding a variety of positions. He worked as a lawyer in Newfoundland and Labrador prior to his work with the Government of Yukon, in a private practice that included real estate law and administrative law. He received both his law degree and a bachelor of arts in political science from Dalhousie University.
The new superintendent said he will be working to ensure the 28 recommendations put forward by the Industry Advisory Group led by Carolyn Rogers, then CEO of the Financial Institutions Commission of B.C. and endorsed by the B.C. government are implemented. The IAG recommendations looked at what was wrong with the real estate industry and its provincial regulatory body, the Council. The advisory group included members of the legal profession including Howard Kushner (Kushner Law Group), Bruce D. Woolley, Q.C. (Stikeman Elliott LLP), and Ron Usher, general counsel, Society of Notary Public of B.C.
The 28 recommendations set out needed changes in three areas: the provincial government should make to its laws, changes to the Council and recommendations for the superintendent's office.
Amongst the amendments that impacted the BC Real Estate Services Act were increased penalties and eradicating any ability to shadow-flip properties between buyers without the seller's knowledge. Maximum fines have increased from $10,000 for agents and $20,000 for agencies to $250,000 for agents and $500,000 for agencies and $50,000 administrative fines under the Act.
The new nine-member council board appointed Oct. 12 will be chaired by lawyer Robert D. Holmes, Q.C., a trial and litigation lawyer. Only two of the nine members have real estate industry involvement.
Noseworthy said he is confident that the new Council can provide the guidance and knowledge required to make the needed IAG changes that relate to the Council's role to regulate and licence brokers.
While all 28 recommendations are important, Noseworthy there are two main concerns. He wants to ensure that shadow-flipping is halted, but also wants to address the issue of dual-agency participation, where an agent represents both buyer and seller.
The BC Real Estate Association, representing 11 regional real estate board, have responded to the 28 recommendations with a report that has been issued to Noseworthy's new office. The provincial association's concern is that not permitting dual agencies, especially in rural areas may limit agents.
As Noseworthy moves deeper into his role and watch-dogs the pieces of a reshaped regulatory system, he is expected to draw national attention. "There will be people right across Canada watching to see what we do here," says Damian Stathonikos, BCREA spokesperson.
Noseworthy remains committed. "My whole career has been about protecting the public, something I am passionate about and the reason I come to work every day,” he says.
The Supreme Court of Canada has dismissed the appeal of a Québec student who had brought a contempt charge against a spokesperson over student protests in that province in 2012; but the most interesting aspect of the case was the split in the court over the decision, says a lawyer who represented one of the interveners in the case.
|Ranjan K. Agarwal, a partner at Bennett Jones in Toronto represented an intervener in the case, the Alberta Public Interest Research Group.|
“What I can say to you is that I find it very, very interesting that the court broke on a 5/3/1, and that is really, really rare,” says Ranjan K. Agarwal, a partner at Bennett Jones in Toronto who represented an intervener in the case, the Alberta Public Interest Research Group.
In the spring of 2012 during student protests in Quebec over proposed increases to university tuition fees, Jean-François Morasse, a student at the Université Laval, obtained a provisional interlocutory injunction that mandated free access to the facilities in which Morasse’s classes were held. In a later television interview, student organizer Gabriel Nadeau-Dubois said that attempts to force students back to class (as the Superior Court had recently done at one Quebec college) never work, and that a minority of students were using the courts to circumvent the majority’s decision to “strike” and picket.
Morasse filed a motion for contempt against Nadeau-Dubois for his comments in the interview, and the latter was found guilty of contempt of court under article 50, para. 1 of the Code of Civil Procedure. The conviction was later overturned by Quebec’s appellate court.
In the majority decision, penned by Justices Rosalie Abella and Clément Gascon, the court dismissed the appeal by Morasse.
“A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice,” the court wrote. “Clear, precise and unambiguous notice of the specific contempt offence must be given to the accused … The only allegations raised by M against N-D related to an alleged violation of one paragraph in an injunction order in the form of comments N-D made in an interview. N-D was not given notice as to which specific branch of art. 50 para. 1, if any, he was being charged under.”
In dissenting reasons, Justice Richard Wagner, writing also for Justices Suzanne Côté and Russell Brown, found that specific knowledge of an order is not essential for the purposes of this section of the Code; “In this case, N-D knew full well that the contempt charge he had to answer had been laid” under two applicable articles of the Code.
In concurring reasons, Justice Michael J. Moldaver found himself “unable to agree with either set of reasons.” Nadeau-Dubois’s television interview comments “intended to incite students at large to breach any and all court orders,” he noted. Yet at trial, the matter hinged on whether Nadeau-Dubois had specific knowledge of a Superior Court judge’s “safeguard order” to allow students to continue attending classes.
Justice Moldaver “said he couldn’t agree with either side,” says Agarwal, “not because of the outcome, but because he thinks the case was … set up in the wrong manner right from the trial.
“For the judges to break five-three-one suggests to me that there are some interesting divisions happening around the conference table,” he adds, “and that the desire to have a consensus approach seems to have dissipated in favour of the judges staking out their unique ideological territory.”
Another intervener in the case was the Canadian Civil Liberties Association, represented by Grey, Casgrain s.e.n.c in Montréal. “The majority reiterates the basic principles of contempt of court,” said partner Julius Grey of the decision.
Like Agarwal, Grey doesn’t see this as “a revolutionary decision. … I think this case is more important for contempt of court than freedom of expression. It doesn’t touch on the right to advocate civil disobedience. It leaves that for another day."
Giuseppe Sciortino, whose firm Melançon Marceau Grenier et Sciortino in Montréal represented the respondent, noted that nine judges — five on the Supreme Court, three on the Court of Appeal for Quebec, and one at trial — had found in favour of his client.
“In future, it may be more difficult to find someone guilty of contempt of court” based on interpretation of words, such as Nadeau-Dubois’s comments in his television interview, he says. “It’s a big victory.”
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