Legal Feeds Blog
New allegations of misconduct have arisen in the long-running saga involving Manitoba Court of Queen’s Bench Associate Chief Justice Lori Douglas.
Douglas, who’s already facing a sexual harassment and discrimination complaint, is now being questioned about her use of a “representational allowance,” which refers to the reimbursement of judges’ expenses incurred while travelling and representing the court. Judges in Douglas’ position are given an allowance of $10,000.
Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench brought questions surrounding Douglas’ representational allowance to the Canadian Judicial Council, which is now reviewing the complaint.
Once the vice chairman of the judicial conduct committee completes his initial review, he’ll either dismiss the complaint or refer it for a further review, says CJC communications director Johanna Laporte.
“The member of the judicial conduct committee will review the matter and will seek comments from the judge. Based on the information that he receives and after considering all points, [he] could make a decision that the matter is without substance and could close the matter at that point or [he] could see that perhaps he needs some advice from additional judges and could refer the matter to a review panel,” she says.
The inquiry into the initial complaint against Douglas has been at a standstill for months. It was launched by Alex Chapman, a client of Douglas’ husband, Winnipeg lawyer Jack King. The complaint accused King of showing Chapman nude Internet photos of Douglas performing sexual acts and pressured him to have sex with her.
In April, the Federal Court dismissed several motions brought forward by parties in the inquiry. However, the hearings in the case can’t move forward until the Federal Court schedules a date for the judicial review application filed by Douglas.
“The delays are not council’s doing,” Laporte tells Legal Feeds. “[Douglas] has sought judicial review on a number of fronts and that’s her right to do so. And so, we have to let the legal wheels turn as they do and allow for those matters to be heard before being able to resume.
“Council remains focused on this and we very much know that it’s in the public interest to try to move the matters in Federal Court along and to get some resolution either way so that council can continue with its public hearings,” she says.
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That’s according to Melina Buckley, chairwoman of the Canadian Bar Association’s access to justice committee, who closed the organization’s annual conference in Saskatoon Tuesday with a challenge to the profession.
“We’re all officers of the court and custodians of the justice system and . . . with that comes responsibility," she said.
Some lawyers, such as those working as corporate counsel or in government, may feel access to justice has little to do with their day-to-day roles, but they still have a “responsibility to in some way commit to helping with access to justice,” she stressed.
She set out five ways in which they can help:
Firstly, they can champion legal aid. “It takes a conversation to get people to understand how important legal aid is,” she said.
The justice system is not seen as a priority by most people, in the same way health and education are, Buckley argued. The report published by her committee on Monday, "Reaching Equal Justice: An invitation to envision and act," highlighted that spending on the justice system, excluding corrections and policing, amounts to just one per cent of the overall government budget.
This is despite the fact studies have shown each $1 spent on legal aid results in savings to the public purse of $6.
Secondly, lawyers can become “justice innovators,” Buckley said.
Thirdly, they can promote “legal health,” for example by encouraging people to have annual “legal health check ups” that would assess any potential legal risks they may be facing.
Fourthly, everyone in the legal profession can pledge to “spread the word,” helping to engage others in the debate.
Lastly, lawyers need to keep themselves informed about access to justice issues, making sure they are asking questions and taking the time to read reports.
She also warned against an over-reliance on pro bono services, which were currently preventing an “emergency situation,” she claimed.
Speaking to Legal Feeds earlier in the week, Buckley said the committee had decided to “really go against the grain” in its stance on pro bono services, limited scope retainers, and assistance to self-represented litigants.
“We don’t think it’s sustainable to build a system like a food bank,” she said. “It’s like admitting the system has failed. We have a problem with it [pro bono] being used to fill the gaps.”
Speaking before yesterday’s speech by Justice Minister Peter MacKay, Buckley said she hoped his recent appointment would bring about a change of direction from the federal government.
“For a long time the message was ‘it’s part of the jurisdiction of the province and the federal government doesn’t have a role.’ Well the federal government has to be involved,” she said.
“I don’t think we’re seeing the attitude change yet,” she added.
As reported on Monday, the access to justice report made a number of demands from the federal government, including more funding for legal aid and national benchmarks on access to justice.
MacKay has said he needs to read the report thoroughly to provide a thoughtful response.
|The first-ever CSCS Peter Dey governance achievement award recipients Peter Dey (middle-left), Paradigm Capital, and Anna Tudela, Goldcorp Inc (middle-right) accept their awards at the Excellence in Governance Awards.|
“In this first inaugural year, we received an impressive 80 nominations across all industry sectors,” said CSCS president Lynn Beauregard. “We couldn’t have been more pleased with this outcome and I believe that this validates that these awards are indeed a very important and welcome program for the Canadian governance community.”
Peter Dey, chairman of Paradigm Capital, considered Canada’s “godfather of corporate governance” for the 1994 Dey Report, was also honoured for his contribution to corporate governance in Canada.
The other winners included:
• Best overall governance: BCE — Alain Dussault, corporate secretary
• Best approach to board and committee support: Tarion Warranty Corp. — Lesley Ross, corporate secretary
• Best sustainability, ethics, and environmental governance program: Telus — Maria Preovolos, associate general counsel and assistant corporate secretary
• Best practices in managing boardroom diversity: Shoppers Drug Mart — Adam Grabowski, vice president, legal affairs
• Best use of technology in governance, risk, and compliance: BMO — Neil Puddicombe, vice president and corporate secretary, BMO Financial Group
• Best shareholder/stakeholder engagement: Canada Council for the Arts — Michelle Chawla, corporate secretary and director, strategic initiatives,
• Joyce Borden-Reed CSCS distinguished contribution award: Joan Wilson
• CSCS Peter Dey governance achievement award: Peter Dey, chairman, Paradigm Capital
• CSCS Peter Dey governance achievement award: Anna Tudela, vice president, regulatory affairs and corporate secretary, Goldcorp Inc.
• Best overall governance: MTS Allstream — Pierre Blouin, Chief Executive Officer & Paul Beauregard, chief administrative officer and corporate secretary
• Best approach to board and committee support: Mountain Equipment Co-operative
• Best sustainability, ethics, and environmental governance program: Port Metro Vancouver — Dean Readman, director, legal services and corporate secretary
Canadian Corporate Counsel Association representatives Grant Borbridge of Emergo Group of Companies; Cathy Cummings, CCCA; and Terri Uhrich, K+S Potash Canada reviewed all submissions and determined the shortlist of nominees.
One of the awards judges, Richard Leblanc, an associate professor of law, governance, and ethics at York University said he looked for “intention but also results” when reviewing the submissions.
For example, with Shoppers Drug Mart in the category of “best practices in boardroom diversity,” the retailer had women and minority representation that was fairly high, says Leblanc, but they also had women chairing key committees and didn’t have “over-tenured” directors, which he says promoted refreshment of the board compared to other boards with long-serving directors. In another submission a bank had a woman who had been on the board for 20 years.
“I look at intention, outcome, and sustainability. I saw that with Shoppers,” says Leblanc.
He also focused on leadership and diversity. “You can say you have women on the board but are they in leadership positions? It’s also about ethnicity, age, gender and when the rubber hits the road do you do it? I think Shoppers was a good example of that.”
In “best sustainability, ethics, and environmental governance” category, which went to Telus, Leblanc says he was looking for tangible commitments to employees, to the community, to customers and the environment.
“That means meaningful metrics that are measured, of relevance to stakeholders and assurance of the numbers so you’re not gaming the metrics. The field is immature — it is not as mature as financial metrics are,” he says.
Leblanc says because there is no diversity or climate legislation in Canada it means there is no firm obligation requiring boards to focus on these areas, but he thinks there should be a push from government driving adoption of these kinds of best practices.
The panel of expert judges included Leblanc, Brendan Sheehan of The Illawong Group; Gigi Dawe of the Canadian Institute of Chartered Accountants; Stephen Griggs from Smoothwater Capital Corp.; Davies Ward Phillips & Vineberg LLP partner Carol Hansell; Sylvia Groves of the Governance Studio; Andrew MacDougall of Spencer Stuart; Paul Schneider of Ontario Teachers’ Pension Plan; and Elizabeth Watson of Watson Inc.
The federal minister spoke with Legal Feeds this morning, elaborating on
|Peter MacKay says he wants to reduce the number of civil cases in which the government is “in conflict with the people of Canada.”|
In a question and answer session yesterday, he said the government would consider whether greater transparency around judicial appointments would encourage more diversity.
But he added: “I think the more pressing issue is answering the disparity and appointing more female judges, if I can be so frank.”
He said he knew of “a number of cases” where the pool of applicants suggested by judicial advisory committees included insufficient numbers of women.
“The first course of action would be to “ensure we have fully functioning JACs that include women, that have a greater gender balance. That, I think, will help facilitate some of the disparity,” he said.
He told Legal Feeds encouraging women and people from ethnic minorities to become superior court judges was a “very important objective,” to ensure the bench is drawing from the strongest possible pool of candidates and is a “reflection of the changing face of Canada.”
Asked about the role law firms could play, he said: “I think women and ethnic minorities benefit from mentoring and, like many professions, it’s [down to] the goodwill and desire of people working in the system to assist and encourage female candidates and those who have, in some cases, had to overcome barriers.”
However, he added: “The over-riding consideration is and will remain making potential appointments on merit.”
MacKay also said he wanted to reduce the number of civil cases in which the government is “in conflict with the people of Canada.”
“There’s a lot of value added in trying to lessen that number and trying to settle some of these cases out of court, through arbitration,” he said.
He was non-committal on the question of whether the federal government could play a bigger role in collecting data and setting national benchmarks for areas such as legal aid coverage — a recommendation in the CBA’s report on access to justice, published on Monday.
He said: “Those sort of statistics always help, but I’m loathe to direct, to suggest, that the provinces have to do a better job. It’s one of those jurisdiction areas where they have to make those decisions about priorities, and they’re best placed to do it.”
During his speech yesterday, he said he had not fully read the report, but would be formulating a response.
He also outlined four priority areas, including:
- Creating a bill of rights for victims;
- Tackling cyber bullying;
- Taking a tougher stance on impaired driving; and
- Addressing concerns regarding accused persons found not criminally responsible.
He said he had spent the past month travelling around the country and meeting people to discuss a variety of legal issues.
Regarding a proposed bill of rights for victims, he said: “It’s fair to say that many have recognized that significant improvements have been made. But I’ve heard many victims who still feel the system’s failing and they don’t feel that it is thus far meeting their needs, they want the system reformed to include them in a more substantial way.”
He said his desire to address impaired driving was partly informed by his experience as a Crown attorney.
“Impaired driving has serious consequences and I want to make sure that any legislation we introduce will send a strong message of society’s abhorrence of this crime,” he said.
Yesterday’s speech was followed by a question and answer session with delegates.
Former CBA president Simon Potter asked MacKay whether he had given consideration to the “growing lack of respect for the judicial branch, coming from the legislative and executive branches.”
Potter said: “Many commentators have looked at what has been coming from Ottawa in the past years and we’ve seen a trend towards, not just minimum sentences, but other things as well that seem to tell our judges that, well, ‘you’re not there really to judge, you’re there simply to do.’”
MacKay responded: “It’s certainly something I’ve reflected on . . . judicial independence is one of the most important underpinnings of our system. Having said that, and I say that with the greatest respect, I think it’s a bit of an over-dramatization to suggest that this has been a trend, or that this has happened in any way that’s disproportionate.”
Mandatory minimum sentences have been around as long as the Criminal Code, he said.
He added: “I think it’s fair to say that the legislative branch owes a duty to respond to public outcry and expressions from the public for example of a trend in low sentences for serious violent offences.”
He would make “no apologies” for the government acting on its “prerogative” to act on concerns by members of the public, he said.
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|Allowing only Gideons to distribute religious literature is discriminatory, ruled an HRTO tribunal.|
“Allowing only the Gideons, a Christian group, to distribute religious literature in the board’s schools under the version of the policy in place when S.C. was in Grade 5 discriminated against the applicants,” wrote HRTO associate chairman David Wright in his Aug. 13 decision.
“S.C. was a student and R.C. was a parent in a school board where, pursuant to policy, representatives of one creed and no others, including atheists, were permitted to distribute religious texts to students in the schools. They were asked to consent to S.C. receiving the text of one creed with which she did not identify and there was no opportunity for her to receive literature from any other creed that wished to provide it.”
The father, R.C., launched the legal challenge after the principal of his daughter’s school sent home a note in November 2009 that included a permission slip for the Gideons to give her a Bible after class. While the note indicated participation was voluntary, R.C. contacted the principal proposing that he be able to distribute another book, Just Pretend: A Freethought Book for Children, that promotes atheism and, among other things, compares God to Santa Claus.
While the school’s council ultimately decided to distribute neither book, R.C. made a second request to hand out Just Pretend in early 2010. The board declined, arguing schools have the right to sponsor the study of all religions without imposing the view of any particular creed. In its view, according to the ruling, atheism isn’t a religion. In addition, it suggested Just Pretend was a secondary publication as opposed to a globally recognized sacred text.
When it came to whether atheism counts as a creed protected by the Human Rights Code, Wright found in R.C.’s favour.
“In my view, a purposive interpretation of the prohibition on discrimination because of ‘creed’ in the code includes a prohibition on discrimination because a person is atheist,” wrote Wright.
“The difficulty with the respondent’s position is illustrated by the following example of its consequences,” he added. “If an employer decided to dismiss all employees who did not share the religious faith of the president of the company, those who belonged to other religions would have a claim, but not those who are atheist, agnostic or who do not have a view on religion. It would allow the province, a service provider or an employer to enforce particular views and practices on those with atheist views or no clear views about such matters, but not on those who actively believe in a different religion. This is not a purposive interpretation of the code.”
In the end, Wright found that allowing only the Gideons to distribute literature in Niagara schools was discriminatory. While the board has since revised its policy to grant discretion over the distribution of religious materials more generally, Wright found the move to be insufficient, particularly given its restriction to recognized sacred texts.
As such, he struck the board’s current policy and ordered it to revise its approach and “make at least some efforts to encourage a diversity of literature and awareness of the policy under which the materials could be distributed.”
The policy should include allowing for the distribution of atheist materials, a prospect Wright admitted could be controversial.
I understand that some parents and students may not agree with some of the content of atheist literature like Just Pretend. However, the applicant and others do not agree with some of the content of the Gideon Bible. If the board decides to have a policy permitting distribution of religious literature, it must be prepared to accept that some parents and students might object to materials that others, with parental permission, are receiving. If it is prepared to distribute permission forms proposing the distribution of Christian texts to committed atheists, it must also be prepared to distribute permission forms proposing the distribution of atheist texts to religious Christians. It cannot design its criteria in a way that would permit communication of materials setting out their beliefs by some, but not all creeds.
For its part, the board says it respects the tribunal’s decision.
“Our locally elected trustees are responsible for determining board policy and we will forward the information contained in the order to them for their review and consideration,” says District School Board of Niagara spokesman Brett Sweeney.
“The tribunal’s decision provides for two possible courses of action and our trustees will collaborate with each other, engage with parents, and consider the best interests of the students we serve to determine the best way to move forward.”
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But the report says hitting the deadline will require “dramatic” change, and sets out 31 recommendations for the legal industry, regulators, and government.
These include establishing national benchmarks for legal aid coverage, increasing federal justice spending, and drawing up clearer guidelines on alternative billing structures.
"Reaching equal justice: An invitation to envision and act" says priority must be given to “the abysmal state of access to justice in Canada today.”
“We need to make visible the pain caused by inadequate access and the huge discrepancies between the promise of justice and the lived reality of barriers and impediments,” says Melina Buckley, chairwoman of the CBA's access to justice committee. “Inaccessible justice costs us all, but visits its harshest consequences on the poorest people in our communities.
“We cannot shy away from the dramatic level of change required: too many people think that justice in Canada is only for the rich and that our system of justice is broken,” says Buckley. “We need to radically redress this imbalance.”
The report highlights Canada’s “shocking” ranking on international justice indicators, and cites research showing legal aid spending has stayed flat for many years despite significant increases to health and education budgets.
“We need to make visible the pain caused by inadequate access and the huge discrepancies between the promise of justice and the lived reality of barriers and impediments,” it says.
Measuring access to justice more efficiently would help to direct funding where it is needed and highlight areas of need, the report argues. It recommends annual access to justice metrics reports, a national research strategy, along with “aspirational” national targets for legal aid coverage.
The expansion of legal expense insurance, particularly in the area of family law, may also help people to access legal services, the report says.
Lawyers should continue to consider pro bono as a “professional obligation,” it states. Under the authors’ vision, all lawyers would volunteer their services at some point in their career.
It says: “Though we are all busy, we can integrate this change in perspective, to work simultaneously on the matter at hand while contributing to broader systemic goals.
“For lawyers, this challenge can be seen as an extension of our professional duty as officers of the court.”
It also calls for more community engagement on justice issues, steady increases in federal contributions to legal aid funding, and improved technology in the courts system.
2030 has been set as a deadline for achieving equal justice across Canada, a timeframe that fits with broader objectives such as the United Nations Millennium Development Goals
The 51-page report is a summary of issues due to be explored in more depth in a paper this fall. The CBA has also offered a "map" of its A2J plans.
The Ontario Court of Appeal denied the insurer a leave to appeal yesterday, noting it did not pass “the stringent test” required to appeal matters of bankruptcy proceedings.
Nortel Networks Corp. and several of its affiliated companies were granted protection from their creditors under the Companies’ Creditors Arrangement Act in 2009 after they declared bankruptcy.
The executives’ insurer, Chartis Insurance Co. of Canada, is to pay for costs they incurred during two CCAA proceedings without reference to a $10-million retention amount or the executives’ trust fund.
According to the motion judge who made the ruling, Nortel had an obligation to indemnify its executives but couldn’t do so because of the CCAA stay of proceedings.
The motion judge “interpreted the directors’ and officers’ insurance policy to mean that the retention amount did not apply, because payment was not ‘permitted,’” the appeal court said. The motion judge had also said applying the retention amount would mean prioritizing Chartis over other Nortel creditors.
The judge’s interpretations were “squarely within his expertise,” the appeal court said Thursday, noting it doesn’t easily grant leave to appeal in CCAA proceedings.
“In a CCAA proceeding, leave to appeal is granted sparingly and only where there are serious and arguable grounds of significant interest to the parties,” the court said. “The applicant has not succeeded in meeting the stringent test for leave to appeal as set out in Re Timminco Ltd. . . .”
In denying leave to appeal, the appeal court also said the issues in the case are specific to it and “not of broader interest to the practice or the public.”
In Canada, Nortel has over 20,000 affected former employees. The majority of them are pensioners, severed workers, and long-term disabled employees. In May, the Superior court extended the stay period in the Nortel matter until Oct. 31.
Also yesterday, the Supreme Court of Canada rejected a leave to appeal in another insurance case, David J. Gillespie Professional Corp. v. Frank Cowan Co. Ltd. In that case, the appeal court had ruled Frank Cowan wasn’t responsible to cover the legal expenses of former foster parents over its aggregate policy limit of $500,000.
The parents were terminated after they were charged with criminal offences. They were later acquitted, but the appeal court said the insurer isn’t liable for the legal costs they incurred after their termination as foster parents.
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Gail J. Cohen