Legal Feeds Blog
Ontario priest charged in theft of $500,000 meant for refugees, Canadian Press
In a dramatic reversal, the Supreme Court has overturned what had been called a “game-changing” decision by the Federal Court of Appeal and ruled that non-unionized employees of federally regulated business are entitled to similar protections against dismissal as those afforded to unionized workers.
|Today’s Supreme Court decision “sets the law to what we thought it was prior to the Federal Court of Appeal decision,” says lawyer Stacey Ball.|
The decision affects half a million non-unionized employees working in banks, telecommunications, airlines and other federal enterprises.
“It sets the law to what we thought it was prior to the Federal Court of Appeal decision. We’ve gone back to what most people thought the legislation meant prior to adjudicator Wakeling [n Knopp v. Western Bulk Transport Ltd.],” says Stacey Ball of Ball Professional Corporation who was counsel for the intervener Canadian Association for Non-Organized employees. “Basically, you can’t dismiss someone on a without cause basis. The employee has a substantive right to challenge their dismissal now."
The decision was disappointing to Ronald Snyder, partner at Fogler Rubinoff LLP in Ottawa who represented Atomic Energy of Canada Ltd in the case. He calls it “unsettling” with “very significant consequences.”
“This decision will undoubtedly be regarded by all federally regulated companies across Canada as a highly disappointing and disconcerting one,” he says. “The Supreme Court is essentially taking the position that non-unionized employees of federally regulated companies enjoy the same guaranteed job protection as unionized employees. They are entitled to job security for life unless that very high threshold test of just cause can be established to dismiss them.”
Snyder says the dissenting justices used “strong language” such as “circular reasoning” and “reliance on frail evidence” to characterize the majority’s reasoning that underlies the “unsettling nature of this decision.”
Ball says when the Federal Court of Appeal decision came out in 2015 he “just thought it was so wrong.”
“The approach of the Federal Court of Appeal was to neuter the Canada Labour Code,” he says. “Why would parliament go through that attempt to create rights similar to what employees have in the labour unionized context where arbitral jurisprudence is applied and then just say Common Law applies? It doesn’t make sense.”
Unionized employees who are terminated have long had the ability to seek reinstatement with back pay or other forms of compensation before independent labour arbitrators. This right has now been reconfirmed for non-unionized employees as well.
"This is an extremely important judgment and confirms that employees of federally-regulated corporations and agencies cannot be terminated from their jobs except for just cause," said employment James LeNoury in a statement. LeNoury represents Wilson and argued the case before the Supreme Court.
“It overturns the Federal Court of Appeal ruling and brings the meaning of ‘unjust dismissal’ under the Canada Labour Code in line with the accepted interpretation that had been followed by the vast majority of adjudicators since the law's introduction in 1978.”
The core issue in this case was whether federally regulated employers could dismiss employees without cause.
Wilson was dismissed in 2009 after four years with federally regulated AECL. Although he’d been provided severance pay, he sought written reasons for his dismissal. Wilson suspected AECL's motive was reprisal for earlier allegations of corruption in the department where he’d worked. The company provided a letter stating Wilson was terminated on a non-cause basis and therefore refused to provide reasons. The Federal Court of Appeal upheld AECL’s decision.
The decision by Justice David Stratas in 2015 had been referred to by some lawyers as an “almost Supreme Court style level of analysis.” He had referenced many cases, in particular wrote that, “. . . I largely agree with adjudicator Wakeling in Knopp v. Western Bulk Transport Ltd.,  C.L.A.D. No. 172] supra at paragraph 77:
“In conclusion, Divisions X, XI and XIV of Part III of the Canada Labour Code do not jettison the common law principles which govern the termination of an employment relationship. Had Parliament intended to implement a drastically different legal order in which common law principles played no role, it would have said so in plain language. In enacting Division XIV of Part III of the Code, Parliament created another forum besides the courts to hear complaints of unjust dismissal and granted Code adjudicators remedial powers common law judges are without.”
“But six judges said he was wrong on the Canada Labour Code,” says Ball.
Ball says the minority opinion of the other three SCC judges was “ideologically driven” along the lines of what rights employers should have and the attempt by the Federal Court of Appeal was to interpret legislation in a manner to give employers those rights.
For more on this story see http://canadianlawyermag.com/inhouse-home.html on Monday.
As Lakehead University’s first round of law grads hit the job market this year, it seems they’re coming up against some barriers from the profession.
|Lakehead law dean Angelique EagleWoman is asking the profession for more understanding as the first round of IPC grads hit the job market.|
“We have some firms telling graduates that articling is necessary to be in the hiring pool for that firm,” Angelique EagleWoman, dean of Lakehead’s Bora Laskin Faculty of Law, says, calling it an additional obstacle that’s discouraging for the new grads.
“We also ran into this issue with crown offices and government departments — to be in the hire-back pool, only articling students are eligible, which puts our students at a disadvantage.”
The Integrated Practice Curriculum at Lakehead, approved by the Law Society of Upper Canada in 2013, was in response to a 2007 Carnegie Foundation for the Advancement of Teaching report, “Educating lawyers: Preparation for the profession of law,” which made recommendations for more experiential and skills-based opportunities within legal education.
The IPC, EagleWoman says, is “an example of how that could be done.”
With practice skills “interwoven into every first year course,” a concentration of practice skills in second year, one semester in a placement in third year, summer positions, and a legal clinic at the school, there is no requirement for Lakehead law students to article.
“When they graduate, they go right into their exams and — based on results — they are licensed, called to the bar, and ready to practice,” EagleWoman says.
The placements were rolled out for the first time last year, and the school had 84 placements available for 57 students. The local bar has been enthusiastic about this type of curriculum, EagleWoman says.
EagleWoman recognizes the IPC is new and different, but says it’s also innovative and responsive to the ongoing discussion nationally and internationally on how legal education doesn’t necessarily match with the needs of the legal profession.
“If students, in their legal education, have a majority of doctrinal, philosophical, more abstract-based courses … without any grounding in practical skills, transaction skills, what it means to be a lawyer, then we’re really doing a disservice to those going to law school.”
Law Society of Upper Canada spokeswoman Susan Tonkin says the main goal is to provide the public with competent and professional lawyers, licensed through requirements that are fair and accessible.
The options available to satisfy the experiential requirement of the licensing process enable law students to choose the “most appropriate experiential training path for them.”
But on the flip side of that coin, it’s also up to law firms to decide what’s right for their purposes.
“Needs of law firms may differ, and the experiences they offer to licensing candidates and new lawyers also varies. When hiring, it is for law firms to determine how their needs can best be met and how licensing candidates and new lawyers can have a fulfilling experience,” Tonkin says.
Gina Alexandris, senior program director of Ryerson University’s Law Practice Program, knows the push back EagleWoman is getting only too well.
“In a profession where a lot is based on evidence, it’s interesting how quickly some of our colleagues are prepared to make judgments without actually looking at evidence or looking at information really closely,” she says.
Alexandris’ advice for Lakehead is to act on feedback from all stakeholders and to keep educating people.
“We’re out there constantly speaking to people, letting them know what the program is and what it isn’t, and who the candidates are and who they’re not. It’s a constant challenge but we keep fighting back with excellence in the programming.”
EagleWoman plans to continue meeting with local practitioners, and says the overwhelming response has been very positive from those who have collaborated with the program so far. She is hoping for more understanding of “what the IPC is and what we’re doing here at Lakehead.”
“It’s exciting times in the legal profession. As a profession we continue to improve and put in place better systems. We have to continue to grow and develop with the world around us.”
Toronto Star columnist charged with assault, Canadian Press
B.C. man gets 7 years for 'crime spree' in Yukon, Canadian Press
|Steven Barrett is representing three Ontario Legal Aid lawyers who have filed a pay equity complaint.|
The complaint, filed on Monday, says legal aid must conduct a job evaluation review to ensure staff lawyers’ pay is line with male lawyers doing similar work.
According to the Pay Equity Act, a position is deemed “female job class” when 60 per cent or more of employees hired in that position are female. According to Steven Barrett of Goldblatt Partners LLP, a lawyer for the complainants, the act also requires employers to maintain pay equity.
“Given that the class is now confirmed to be predominately female, [LAO] has to do a gender-neutral job evaluation...to make sure that the predominantly female lawyers working as duty counsel at LAO are not being underpaid relative to their male comparators,” Barrett says.
Barrett says a similar complaint was previously rejected on the basis that the complainants did not have sufficient evidence to suggest that the staff lawyer position at LAO can be deemed “a female job class” for the purpose of the Pay Equity Act.
“If the staff were unionized, they’d be entitled to disclose of that information but because LAO has refused to recognize the Society [of Energy Professionals] as their bargaining agent, they weren’t able to get the information they needed,” Barrett tells Legal Feeds.
But the information they needed has since come from an interesting place, the complainants say. When, in 2015, LAO lawyers launched a Charter challenge in regards to their bargaining rights, former legal aid CEO Bob Ward submitted a sworn affidavit in which he “bragged” that by the end of 2015, two-thirds of LAO lawyers were women, says Barrett.
“They’ve now conceded whatever the pay equity process had earlier determined there wasn’t sufficient evidence [to support],” he adds.
In an e-mail to Legal Feeds, LAO spokeswoman Feroneh Neil said the figure cited in Ward’s affidavit is accurate. But she added that depending on their call, staff lawyers are paid between $76,000 – $115,000 “irrespective of [their] gender.”
“In 2015, the Pay Equity Commission confirmed that the staff lawyer job class is a gender neutral job class, and found that there was no contravention of the Pay Equity Act,” Neil also said.
LAO staff lawyer Linh Le, who is one of the three complainants, says pay equity legislations are “meaningless” if they’re not enforceable.
“It’s known that women often face pay discrimination and it’s often even worse for women of colour,” Le says, adding her colleagues are mostly women and people of colour. “We feel that there’s possibly some discrimination happening there and we just want to make sure that they’re upholding their duties,” she adds.
The pay equity complaint comes as LAO lawyers continue to mount a campaign to unionize after LAO rejected their bid to be represented by the Society of Energy Professionals in 2013. Their Charter application against LAO and the Ontario government is scheduled for hearing on Dec. 5.
Under labour laws, lawyers must get voluntary recognition from their employers in order to join a union because the Labour Relations Act excludes lawyers. But others who fall into that exception, such as police officers and government lawyers, have received voluntary recognition from their employers to join unions.
LAO, for its part, has said it respects the employee right to associate and is willing to consider associations other than the union the employees want to join. Ward previously expressed concerns about the fact that the employees’ choice of union, the Society of Energy Professionals, is a trade union.
The lawyers say they’ve chosen that union because it is an “experienced and well-resourced association/union to mount an effective campaign.”
The Society of Energy Professionals’ executive vice-president Michelle Johnston, says, “It’s the lawyers who came to us and that’s their right.”
“It’s been three years of turmoil where the government doesn’t want to engage with us in a conversation but they’re doing a lot of work behind the scenes to make sure it doesn’t happen,” Johnston says.
The union, Ontario Federation of Labour President Chris Buckley, and organizers with the Fight for $15 and Fairness campaign have announced they’ll join picketing LAO lawyers tonight outside of a Liberal fundraiser in Toronto.
With files from Glenn Kauth
Family of Winnipeg woman missing for a year asks for help, Canadian Press
The West Coast Women’s Legal Education and Action Fund has been granted intervener status in the inquiry into the conduct of Justice Robin Camp.
|Raji Mangat of West Coast LEAF says it is “heartening” to know that the Canadian Judicial Council saw the issue with a wider lens of public interest.|
Camp presided over a sexual assault trial in Alberta in 2014 and asked the complainant, an indigenous woman who was 19 years old and homeless at the time of the alleged assault, “Why couldn't you just keep your knees together?”
He also referred to the woman repeatedly as “the accused,” and remarked that “sex and pain sometimes go together […] that’s not necessarily a bad thing” and that “young wom[e]n want to have sex, particularly if they are drunk.”
The Canadian Judicial Council is investigating a complaint brought by the Attorney General of Alberta that calls for Justice Camp’s removal from the office of Federal Court judge, a position to which he was later appointed.
It is unusual for interveners to be part of a disciplinary proceeding.
“It was heartening to know the Canadian Judicial Council saw the issue with the wider public interest lens such that they invited interveners — that doesn’t always happen,” says Raji Mangat, director of litigation for West Coast LEAF.
In fact, a coalition is intervening with LEAF and involves organizations with specialization in the law of sexual assault and the protections of the Criminal Code that allow for survivors of sexual assault and complainants in criminal trials to not be susceptible to the myths that somehow their prior sexual conduct or experience reflects on their credibility.
West Coast LEAF is intervening in the inquiry in collaboration with the Avalon Sexual Assault Centre, Ending Violence Association of British Columbia, the Institute for the Advancement of Aboriginal Women, and Metropolitan Action Committee on Violence Against Women and Children.
The coalition will make arguments about the impact of Justice Camp’s behaviour on survivors and on public attitudes about sexual assault, and about the legal protections for sexual assault complainants that Justice Camp allegedly ignored.
Mangat says the opportunity is “ripe for a public conversation” on the issue after the Jian Ghomeshi trial and events in the United States such as the Stanford rape case.
“At this moment in Canadian history, the public has little faith that the criminal justice system will treat complainants in sexual assault trials fairly. Justice Camp’s conduct adds to this distrust and worsens the chilling effect on survivors,” she says. “What faith can we have in a system where a judge — the person whose responsibility is to oversee the process impartially — suggests that the complainant is to blame for the attack, that she consented because she didn’t fight hard enough, or that she is less credible because of her sexual history?”
Mangat says she hopes the Canadian Judicial Council will really look at the conduct of the judge in the case “with a wider lens” of what does it mean for women and other sexual assault complainants.
“What sort of chilling effect does this have on individuals who survive sexual assault and sexual misconduct and are now getting a message from someone who is supposed to be an independent, impartial arbiter of their case — comments that are very, very troubling?” she says. “I think judges really need to recognize that they have a very high role and responsibility in our criminal justice system.”
Justice Camp’s treatment of the complainant turns the clock back on the law of sexual assault, adds Kasari Govender, executive director of West Coast LEAF. “We are here to protect survivors’ right to fair treatment by the courts and equal protection of the law. We know that the vast majority of sexual assaults are never prosecuted, in large part because women do not report for fear of unfair treatment within the justice system. Women will not be safe unless we address this treatment head on.”
The hearing into Justice Camp’s conduct will take place in Calgary Sept. 6-9.
The Toronto Real Estate Board is telling consumers their privacy will be hurt, after a recent Competition Tribunal ruling that clears the way for information about house sales to be shared online.
|The Toronto Real Estate Board is appealing after a Competition Tribunal ruling it alleges will hurt consumer privacy regarding house sale information.|
John DiMichele, TREB’s chief executive officer, said they’ll be appealing the tribunal’s June decision, after asserting “the Tribunal erred in fact and law in determining that TREB has lessened competition.”
The TREB says the board has concerns people will have the information about their home sale prices shared without explicit consent.
“How do you feel about having the sale price of your home placed on the Internet immediately after you sell your property, whether it’s closed or not?” says John DiMichele, TREB’s chief executive officer.
The ruling relates to data in the Multiple Listing Service System Database for homes that have been sold or are pending to be sold, and the realtor’s ability to share that information more widely through a Virtual Office Website. DiMichele says TREB is not opposed to the dissemination of data about house sale prices, but he said they want to ensure the appropriate consents are provided by consumers before the information is available online.
“Privacy laws and decisions of the Privacy Commissioner of Canada are clear in their requirement for consumers to provide their consent prior to the release of their personal financial information and specifically the sold price of your home. The new Digital Privacy Act which came into force in 2015 further buttressed the privacy rights of consumers,” said a TREB news release.
“Canada’s privacy law regime requires that any disclosure of personal financial information for uses not previously identified to the consumer requires the consumer's informed consent. It is TREB’s view that the decision of the Competition Tribunal, with respect, does not respect this right of consumers within the GTA.”
However, the Competition Bureau has welcomed the ruling.
“The Bureau remains focused on ensuring that consumers benefit from innovation and competition in the provision of real estate services,” said John Pecman, commissioner of competition, in a June 3 news release.
A Competition Bureau spokeswoman confirmed TREB “has applied to the Federal Court of Appeal to stay the Competition Tribunal’s order, pending resolution of TREB’s appeal.” She also confirmed the Bureau “has been served with a Notice of Appeal by TREB alleging that the Competition Tribunal erred when it ruled in favour of the Bureau in its abuse of dominance case against TREB.”
“The Commissioner of Competition remains focused on addressing TREB’s appeal and achieving a timely remedy to fully address the concerns raised in his application,” she says.
For TREB, if the order is not appealed, there’s a concern TREB “cannot prevent personal financial information or other confidential information of residential property sellers and buyers within the GTA, such as pictures from being copied, sold, or misused once this information is made available on the Internet.”
“We believe that there were a few mistakes made, and we want to get clarification, but, ultimately, it comes down to the simple fact that, since our first meeting with the bureau, we made it really clear that we would not be opposed to distribution of any sold information but what we have said is that there are laws and we believe, particularly with consent, that the consumers should have the right to choose,” says DiMichele. “The bureau and the tribunal feel that the distribution of the sold information, for some reason, the current consents are good enough, but with the new Digital Privacy Act, we feel that that’s not the case.”
Bob Aaron, a real estate lawyer at Aaron & Aaron Barristers and Solicitors, says the TREB’s appeal “is strictly a delaying tactic.”
“TREB should face the inevitable and work within the Competition Tribunal’s guidelines in the public interest, and not against it,” he says.
“Every day, real estate agents post on the Internet photographs, floor plans, and room sizes of their listings — revealing to the public the most intimate details of the contents and furnishings of the houses. And yet TREB argues that sale prices are too personal to post — even with permission. I don’t see the rationale behind their position.”
Toronto man missing after being jailed in Bangladesh, Globe and Mail
Toronto real estate board to appeal competition ruling, Globe and Mail
Bird flu detection leads to quarantine zone in southern Ontario, Canadian Press
- New rules set 30-month 'presumptive ceiling,' above which onus falls on prosecutors
The gravity and seriousness of a case — even one relating to sex crimes against children — cannot be used to justify unreasonable delay at trial, according to the Supreme Court of Canada.
It’s one of the more controversial aspects of a new legal framework issued today by the court for assessing whether a delay is unreasonable under the Charter.
In Jordan v. R., a drug-trafficking conviction was challenged due to a 44-month delay between the charge and ultimate conviction. In a ruling written by justices Michael Moldaver, Andromache Karakatsanis, and Russell Brown, on behalf of a unanimous nine-judge panel, the court sides with the defendant in ruling that his constitutional right to a reasonably timely trial had been violated.
More importantly, the court took the opportunity to rewrite the rulebook on delays, noting that the framework based on Morin v. R. had contributed to a culture of complacency, where rationalization about whether the delay caused true prejudicial harm could be used to excuse a delay.
In its place, the court has created a framework (the Jordan framework) that sets a “presumptive ceiling” for delay of 30 months — above which the burden will now fall on Crown prosecutors to prove that the delay was a result of exceptional complexity or unavoidable circumstances.
The court, however, leaves it to judges to determine the “exceptionality” of the delay:
As the decision states, “It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11 (b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience.”
The ruling does, however, provide guidance to the courts and specifically rules out justifications based on chronic institutional delay, the gravity of the offence, or absence of prejudice.
As the decision states, “An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached.”
While the ruling in Jordan was unanimous, the one in companion case R. v. Williamson split 6-3 on the matter of societal interest.
This case dealt with historical sex offences against a minor. The trial lasted 35 months — above the presumptive ceiling — leading the majority at the SCC to uphold the appeal court decision to stay the proceedings on constitutional grounds.
The conviction, moreover, could not be saved by an argument for exceptional circumstances. The decision, also written by Moldaver, Karakatsanis, and Russell, states:
“Although W did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay, and W was reasonably proactive in attempting to move the matter along. Therefore, while the crimes committed by W are very serious, the balance weighs in favour of his interests in a trial within a reasonable time, over the societal interest in a trial on the merits.”
Justice Thomas Cromwell offers dissent on this point (with justice Richard Wagner and Clément Gascon concurring). In his dissent, he argues that the gravity of the allegations may create pressure on the justice system that contributes to the delay:
“The new framework does not permit the sort of balancing of interests that is inherent in the concept of reasonableness,” he writes. “In this case, staying these charges would be more publicly disreputable for the administration of justice than tolerating an inordinate trial delay.”
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