Legal Feeds Blog
A Federal Court judge initially granted the minister of national revenue authorization to get the details of people who bought controversial “10-8” plans. But the authorization was granted on an ex parte basis, and when the insurers later objected, another judge cancelled them, finding the minister failed to disclose a significant amount of information on the ex parte applications.
In a decision dated Feb. 21, Federal Court of Appeal Justice David Stratas, upheld the cancellation.
“Taxpayers should take comfort that the court won’t allow the CRA to get orders like this for undisclosed purposes,” says Carman McNary, a tax partner in the Edmonton office of Fraser Milner Casgrain LLP.
According to the decision, when it applied for its authorizations, the Ministry of National Revenue failed to let the judge know the CRA had decided to “send a message to the industry” and chill the 10-8 business by going on an “audit blitz” of policyholders. This was despite the fact a CRA internal review had found the 10-8 plans likely complied with the letter of the law, if not the spirit. It also neglected to disclose its failed attempts to get the Ministry of Finance to close the legislative loopholes that allowed the plans to lawfully exist.
The judge who cancelled the authorizations found the minister’s audit purpose was “extraneous to her primary goal, which was to chill” insurers’ 10-8 businesses.
“They went on kind of on a fishing expedition. They had an idea of what they were looking for, but not really exactly what, or who,” says McNary. “The key message out of this is if you’re going to go in front of a judge on an ex parte basis, you have the highest obligation to make sure you provide the judge with all the information they might need, even if it’s detrimental to your own case. . . . If they’d made those disclosures, I don’t think they would ever have got the authorizations in the first place.”
On appeal, the minister argued the cancelling judge overstepped his jurisdiction in reviewing the original decision to grant the authorizations. But writing for a unanimous three-judge panel, Stratas disagreed.
“The Federal Courts have a power, independent of statute, to redress abuses of process, such as the failure to make full and frank disclosure of relevant information on an ex parte application,” he wrote. “The Federal Courts’ power to control the integrity of its own processes is part of its core function, essential for the due administration of justice, the preservation of the rule of law and the maintenance of a proper balance of power among the legislative, executive and judicial branches of government. Without that power, any court – even a court under section 101 of the Constitution Act, 1867 – is emasculated, and is not really a court at all.”
“The marketing and business development talent in our community is tremendous. We were blown away by the number of entries in each category, and looking forward to seeing how our program evolves in the years to come," said outgoing chapter president Lindsay Everrit.
Awards were given out in four categories.
Advertising: The winner was Cassels Brock & Blackwell LLP for its “A Law Unto Ourselves” student recruitment campaign. The WeirFoulds team received an honourable mention for its print campaign.
Online presence: The winner was Osler Hoskin & Harcourt for its “Osler’s Capital Markets Review” campaign.
Practice development: Blake Cassels & Graydon LLP won in this category for its entry entitled “Food, Beverage & Agribusiness Industry Group.”
Rising star: Nominees in this category for legal marketers with less than 10 years in the business included Rachel Collins, marketing technology specialist at Goodmans; Erin Neumann, marketing manager at Goldman Sloan Nash & Haber LLP; and Shaila Pirani-Freitas, manager of programs and events at WeirFoulds. Rachel Collins was the winner and was presented with her award by Joanne Rossi, vice president practice lead of IQ Partners.
Photos: Gail J. Cohen
Nicole Miles, senior marketing manager at Cassels Brock, (left) accepts the advertising award from Karen Lorimer, director and group publisher of Canadian Lawyer magazine.
Susan Elliot of Osler (right) accepts the award for online presence from Lindsay Everitt, outgoing LMA Toronto Chapter president and director of marketing and communications at Goodmans.
On behalf of the team from Blakes, Tamara Costa (centre) accepted the practice development award from Kelly Smith, legal recruitment consultant with Marsden Group (left) and Samantha Graveney, LMA Toronto Chapter president (right).
Rising Star winner Rachel Collins, a marketing technology specialist at Goodmans, (left) with her award and colleague Lindsay Everitt.
Quebec's anti-corruption sees former head of CSIS up against fraud charges, Toronto Star
Gamblers out $2M lose again as second court rules against them in lawsuit against casino, Calgary Herald
Quebec's language laws could affect military families unfairly, The National Post
Federal bankruptcy judge approves liquidation plan for collapsed law firm Dewey & LeBoeuf, Reuters
Supreme court divided on merchants' antitrust case against American Express, Reuters
Two former Singapore UBS AG traders sue bank for wrongful dismissal, Reuters
Lone practitioner representing 2,000 Colombians suing Chiquita faces second motion to dismiss suit, Reuters
|Lucas Lung says the Whatcott decision also protects equality rights.|
The case, Saskatchewan Human Rights Commission v. Whatcott, involves William Whatcott, a Saskatchewan man who distributed, in 2001 and 2002, four anti-gay flyers in the province. Four people complained to the Saskatchewan Human Rights Commission, which then sued Whatcott.
The first two flyers were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools.” The other two flyers were identical to one another and were a reprint of a page of classified advertisements to which handwritten comments were added, according to the ruling.
In its 6-0 decision, the SCC ruled that two of the flyers constituted hate speech, thereby reinstating Whatcott’s conviction by the Saskatchewan Human Rights Tribunal.
“The tribunal’s conclusions with respect to the first two flyers were reasonable. Passages of these flyers combine many of the hallmarks of hatred identified in the case law,” SCC Justice Marshall Rothstein wrote on behalf of the court.
“The expression portrays the targeted group as a menace that threatens the safety and well-being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred.”
Lucas Lung, a partner at Lerners LLP, says an important point of the ruling is even though freedom of expression was the focal point, we shouldn’t lose sight of the fact that there is an important equality right being protected here.
He references a paragraph from the ruling, which states: “In my view, the criticisms point to two conceptual challenges to achieving a consistent application of a prohibition against hate speech. One is how to deal with the inherent subjectivity of the concept of ‘hatred.’ Another is a mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression.”
Lung says the court did not depart from its previous rulings involving hate speech. “The analysis appears to be very similar to the approach that was taken in [Canada (Human Rights Commission) v.] Taylor. It recognizes that hate speech prohibitions are constitutional and they can be read down. It applied the Taylor analysis, modified it slightly, but basically applied that analysis to the Saskatchewan provision,” Lung tells Legal Feeds.
Following its 1990 ruling in Taylor, the court maintained that “the term ‘hatred’ contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”
At a press conference, David Arnot, chief commissioner of the Saskatchewan Human Rights Commission, said removing the words “ridicules, belittles or otherwise affronts the dignity of” from the legislation won’t have much of an impact since they haven’t been applied since they were struck down by the Saskatchewan Court of Appeal in Saskatchewan (Human Rights Commission) v. Bell in 1994.
In addition, Arnot said he is extremely pleased with the SCC’s decision, adding “words have power, and this power demands that each of us uses this power responsibility and within reasonable limits.”
In his analysis, Bennett Jones LLP partner Ranjan Agarwal notes the court “held that the freedom of religion (Whatcott argued that his flyers were motivated by his sincere religious beliefs) and religious speech has broad protection like the freedom of expression. But, at the same time, that speech cannot expose vulnerable groups to detestation and vilification, even if it is sincerely-held.”
“The SCC seized this opportunity to clarify and narrow the understanding of ‘hate speech’ as set out in its 1990 decision in the Taylor case,” explains Don Hutchinson, vice president and general counsel with The Evangelical Fellowship of Canada, an intervener in the case. “In doing so the court affirmed that Supreme Court of Canada precedent, even a 4-3 split from 20 years ago, remains binding law in Canada. This is vital to the stability of Canadian law.”
The right-leaning Canadian Constitution Foundation says the Whatcott decision “slams door shut on free speech” in Canada.
“The Supreme Court missed an excellent opportunity to rein in the power of various human rights commissions and tribunals to censor the expression of unpopular beliefs and opinions,” said CCF executive director and lawyer Chris Schafer in a statement after the ruling. “While the Canadian Constitution Foundation does not take any position on the content of the materials distributed by Mr. Whatcott, it believes that it is the right of every Canadian to freely and peacefully express themselves without fear of censorship or persecution by the state.”
Somewhat oddly, the SCC also appended Whatcott’s pamphlets to its decision. This caused some commentators on the Twitterverse to call it “supremely ironic” that the top court is redistributing the hate speech to an even greater audience than it would have reached before.
Update 2:21 pm: comments added from Evangelical Fellowship of Canada
Parliamentary budget watchdog overstepped, Senator calls it 'constitutional vandalism', Vancouver Sun
Refugee board 'misinterprets the law' in overturning asylum claims of two MV Sun Sea passengers: Court, The National Post
Health Canada says 'alternative' to marijuana illegal, defence lawyers disagree, Toronto Star
Supreme Court to review legitimacy of voting law's proivision to protect minorities, Reuters
Maryland's highest court throws out much of $1.5B Exxon leak case, Reuters
Argentina seeks reversal of decision ordering it to pay $1.3B to bondholders, Reuters
UK attorneys predict rise in discrimination, wage cases, Reuters
Lawyers for the alleged victims of rape and murder at a Guatemalan mine will be able to sue HudBay Minerals for the alleged gang-rapes of eleven women, the killing of its community leader Adolfo Ich, and the shooting, and resulting paralysis, of German Chub at HudBay’s former mining project in Guatemala.
In August 2011, HudBay announced
|Angelica Choc stands next to a sign that says 'Adolfo Ich murdered by CGN. Mining is responsible.' Photo: Daniel Sosa|
A week ago, just before an Ontario court was set to determine the issue, HudBay abandoned its legal argument that the lawsuit should not be heard in Canada.
“HudBay fought this issue of whether the trial could be in Canada tooth and nail for over a year,” says Murray Klippenstein, lawyer for the Guatemalan Mayan plaintiffs. “Then they gave up at the eleventh hour, we think, based on the overwhelming collection of evidence. Certainly a major Canadian mining company represented by the preeminent Canadian mining law firm would not give up such a central point in such a key defence without careful consideration.”
HudBay is represented by Fasken Martineau DuMoulin LLP. The defence had filed extensive legal briefs arguing that the lawsuit should be heard in Guatemala, not Canada, despite evidence indicating that Guatemala’s justice system is dysfunctional, making it impossible for the victims to get justice there.
According to the United Nations, Guatemala is one of “the world’s most violent countries officially at peace.” Human Rights Watch says 99.75 per cent of violent crime in Guatemala goes unpunished due to corruption, and intimidation and attacks against judges and witnesses.
While the development effectively removes the legal argument that the case cannot be heard in Canada, Klippenstein says HudBay “continues to rely on antiquated corporate law concepts” to argue in that its corporate head-office in Canada is not legally responsible for the abuse committed by its wholly-owned and controlled overseas subsidiary corporation.
“While HudBay has dropped its forum non convenience defence it will still be relying on other corporate law concepts we think are not appropriate in this day and age,” he says.
Extensive cross-examinations of witnesses and experts took place in December via Skype from Guatemala as well as having some of the plaintiffs travel from the remote mountains of Guatemala to Toronto. There was also video and photographic evidence made available.
“This kind of cross-border overseas litigation is now entirely feasible. I think this is a sea change development because Canadian corporations have always been allowed to rely on a forum non conveniens argument but this case shows that when a case is properly brought with all the evidence properly presented that defence no longer can be counted on,” says Klippenstein. “In this globalized world with video cameras everywhere and examinations by Skype, corporate boardrooms should realize this is now the state we’re in.”
The lawsuits continue in Ontario courts.
Update Feb. 28: Name of law firm representing HudBay corrected.
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NDP labour critic calls for criminal charges for asbestos rule abusers, Vancouver Sun
Ontario charities' 50/50 draws held back by 'single legal opinion', Toronto Star
Scope of arbitration agreements to be revisited by Supreme Court, Reuters
Battle to bring class action suit continues against Wal-Mart as new suit filed in Wisconsin, Reuters
Lawyer for murdered KGB agent accuses UK of cover up to protect Russian ties, Reuters
Spain pressured to reform mortgage law, unchanged for over a century, Reuters
“This new, modern, accessible facility brings together all local court services in Waterloo Region under one roof,” said Attorney General John Gerretsen.
|The new consolidated courthouse in Kitchener, Ont., is now complete.|
“The new courthouse will increase access to justice locally and be a one-stop shop for those who rely on its services.”
The new facility will bring together Superior Court services on Weber Street East with Ontario Court of Justice matters in both Kitchener and Cambridge, Ont., under one roof at 85 Frederick St. in the city’s downtown. Construction began in 2010. The province built the 30-courtroom facility to the Leadership in Energy and Environment Design silver standard. The facility features a barrier-free design as well as video conferencing, close-circuit television, audio amplification systems, and equipment for simultaneous interpretation and evidence presentation.
Superior Court matters will start moving to the new facility on March 4. Ontario Court family matters in Kitchener will follow on March 18 with criminal cases and services moving as of April 2. On April 15, Ontario Court services and Small Claims Court matters in Cambridge will begin relocating.
“The new Waterloo Region courthouse has great significance for not only the justice community but local businesses, community agencies, and residents,” said John Milloy, MPP for Kitchener Centre.
“It will have a major impact on the revitalization of downtown Kitchener.”
The provincial government is touting the on-time and on-budget completion of the new courthouse. According to the Record newspaper, the project will cost $766 million over 30 years, including maintenance. As for the old Superior Court building, the Region of Waterloo is planning to renovate it to house its staff, the Record reported.
Religious schools oppose Man. anti-bullying law, CBC News
Former Que. judge in court to apepal murder conviction, Montreal Gazette
Doctors' group sues federal government over refugee cuts, CTV News
Supreme Court won't hear campaign finance case, Reuters
Sotomayor condemns prosecutor's racially charged language, Reuters
Jailed Qatar poet's sentence reduced to 15 years, Reuters
Ex-Spanish treasurer appears in court over corruption scandal, Reuters
Turner, the 17th prime minister of Canada, joined Miller Thomson as a partner 23 years ago. The retired politician is now 83 years old.
Turner served in the House of Commons for nearly 25 years after being elected in three different provinces: Ontario, British Columbia, and Quebec. He also held positions as minister of justice, attorney general of Canada, minister of finance, and leader of the Official Opposition as a member of the Liberal party.
After resigning as an opposition leader, the father of four joined Miller Thomson, where he worked in the firm’s business law group. His practice areas included business law, litigation, and tax matters.
“The partners of Miller Thomson LLP wish to acknowledge the recent retirement of the Right Honourable John N. Turner P.C., C.C., Q.C. from the partnership and the firm,” the law firm said in a press release.
When Turner joined Miller Thomson in 1990, the firm only had 60 lawyers.
“He immediately played a significant role in enhancing the firm’s image, stature, and client base to enable it to grow to the 450-plus lawyer national firm it is today,” Miller Thomson said.
“For these, and all his other tangible and intangible contributions to our clients, lawyers, students, and support staff over the past 23 years, Miller Thomson is deeply grateful.”
In 2004, then-prime minister Paul Martin asked Turner to lead the Canadian delegation to the Ukraine to oversee the election the country held in December of that year. He was also appointed a companion of the Order of Canada
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