Legal Feeds Blog
Toews served in Stephen Harper’s cabinet as minister of justice and most recently of public safety. His appointment to the bench has long been rumoured.
The Law Society of Manitoba confirmed his appointment in a tweet just before noon EST.
As rumours of Toews appointment to the bench have been swirling for some months, most of the negativity arises in part from his political affiliation but also that he has been away from the practise of law for so many years that many feel he is ill equipped to sit on the bench.
Reaction on Twitter was swift and mostly negative. Here’s a quick hit from the Twitterverse in the few minutes since the news broke.
“The applicant asserts excess of jurisdiction, breach of natural justice, fairness, and violation of his Charter rights and a lack of institutional impartiality and independence between subject tribunal and the Ministry of the Attorney General for Ontario and the attorney general and his agents. He also asserts inadequate representation of counsel,” states Justice of the Peace Errol Massiah’s Jan. 30 factum seeking the Superior Court’s supervisory jurisdiction over the review council’s receipt, investigation, and adjudication of the allegations of misconduct.
The case related to complaints by six female staff members at the Oshawa, Ont., courthouse who said they were uncomfortable around Massiah and alleged he commented on their looks, made sexually suggestive remarks, and eyed them up and down.
In one incident, a clerk said she apologized after entering Massiah’s office when he was buttoning or unbuttoning his shirt. In response, he allegedly told her, “Any time you want to see me with my shirt off, just let me know.”
Massiah denied the allegations and said people misheard or misinterpreted his comments. While a panel found him guilty of misconduct in 2012 and suspended him for 10 days, he now says the investigation of the allegations was improper.
Among other things, he argues in his factum that the law requires officials to refer complainants to the review council rather than, as in this case, allowing for the Ministry of the Attorney General’s director of court operations to forward a representative complaint on the clerks’ behalf.
“The attorney general cannot do indirectly that which he cannot do directly. The act expressly directs the attorney general to refer any person making a complaint to the [review council]. The statute does not allow the attorney general to investigate, prepare statements, and forward complains to the [review council]. It stands to reason that agents of the attorney general must be similarly circumscribed otherwise institutional impartiality and judicial independence may be compromised,” Massiah’s affidavit alleges.
In addition, Massiah alleges bias in the investigation, in particular due to the failure to put his written responses to the allegations to the complainants. He suggests the law firm that conducted the investigation overlooked some of his responses, including his answers on what happened when the clerk saw him buttoning or unbuttoning his shirt.
“I strongly deny making such a statement about seeing me with my shirt off as alleged by Person C. I recall that I was struggling with the top button (which was broken) of my shirt when Person C announced from the door way that court was ready and I replied from the bathroom that I would be right there. There was no discussion between us that could give rise to the allegation.”
Besides seeking to quash the misconduct finding, Massiah is asking for $35,000 in costs.
In the meantime, he has been facing a fresh set of sexual harassment allegations after five more female court staff members, including a provincial prosecutor and another justice of the peace, complained about inappropriate behaviour. While the earlier proceedings were ongoing, five staff members at the Whitby, Ont., courthouse phoned the prosecuting counsel to lodge more sexual harassment complaints after reading media coverage about the case.
|Daniel Mailer says being able to show graphic pictures from his iPad helped secure a noteworthy award for a client.|
“I’ve been looking for the opportunity to try it out,” says Daniel Mailer, of Cram & Associates.
He used his iPad last Tuesday while representing a child dog-bite victim. The day before, he called court services to let them know about his plan. The proposal surprised court staff, but they had a TV screen available the next day that could connect to his iPad.
In the end, Superior Court Justice Ian Leach awarded $60,000 in general damages, an amount Mailer says is above the normal range of $25,000 to $35,000 for facial scarring from a dog bite. He suspects the “graphic images” displayed through the iPad were helpful to his case.
“I was able to show these rather graphic pictures of the injuries to the client on a big-screen TV,” says Mailer.
“The impact was much stronger,” he adds. “I think it was a factor in what the judge decided to do.”
Projecting images in court isn’t new, of course, but Mailer feels the simplicity of having an application like Keynote for the iPad to present the images as well as the ease of carrying around a tablet will make a difference to lawyers in court.
“It’s almost like a PowerPoint presentation but PowerPoint for dummies like me,” he says of Keynote.
And others are using iPads in more extensive ways. According to Toronto court reporter Kim Neeson, a trial beginning in Toronto today will allow anyone with an Internet connection, a device, and an invitation to a secure platform to view the proceedings as they happen.
“This technology is truly wireless — there are absolutely no wires going from the court reporter’s work to the delivery of the real-time transcript on counsel’s receiving device,” says Neeson of the proceedings in Molson Canada 2005 v. Miller Brewing Co. that begin before Justice Frank Newbould.
“If counsel wish to use their own iPad, they simply download an app from the App Store and they are ready to go,” she adds.
The advantages of using the iPad, according to Neeson, include immediate access to court transcripts and allowing experts and clients to participate without being present.
“For court reporters who are used to carrying around a lot of extra laptops for counsel and the court’s viewing, this new technology lightens our load considerably because tablets are so much easier to cart around from place to place,” says Neeson, of Neeson & Associates Court Reporting and Captioning Inc.
“Additionally, the new technology offers a higher level of stability in the sending and receiving of text between the court reporter and counsel.”
Mailer, too, hopes use of the iPad will grow in Ontario courts as has already happened in some U.S. jurisdictions.
“My next move is to go wireless,” he says, noting iPads can also help in other areas such as loading and highlighting court transcripts.
|Former Supreme Court justice Frank Iacobucci has said the justice system as it relates to First Nations is in crisis.|
Ontario has been considering the issue of aboriginal issues on jury panels in recent years given a number of high-profile cases that indicated the provincial government’s lax approach to the matter. Earlier this year, former Supreme Court justice Frank Iacobucci wrote a report that noted the justice system as it relates to First Nations was in crisis. In its ruling on the issue this year in R. v. Kokopenace, the Ontario Court of Appeal highlighted the government’s duty to make reasonable efforts to include First Nations members on jury rolls.
But in Kennedy, it’s fairly clear officials did just that. In documenting those efforts in this case, Goodman noted provincial officials responded proactively to the fact the federal government had stopped providing band lists as of 2000. Sheila Bristo, acting director of the corporate planning branch at the Ministry of the Attorney General, had managers at each Superior Court location contact local band chiefs in order to get an updated list of potential jurors. Only a few bands responded, she told the court.
In the London, Ont., area where the Kennedy matter was taking place, officials sent letters to the band chiefs of the three local reserves: the Oneida of the Thames, the Muncee-Delaware, and the Chippewas of the Thames. There was no response.
Bristo eventually had the sheriff contact the chiefs directly so a senior manager could possibly drive out to the reserves to discuss the issue. The letters all came back as undeliverable. The sheriff was never able to reach any of the chiefs personally, although the chief of the Munsee-Delaware First Nation at one point left a message saying he had made a request to the band council, without success, for a band eligibility list. The band’s position was that no list would be forthcoming, according to the sheriff’s testimony. The Chippewas of the Thames later responded that it, too, would decline to share a band list, while the Oneida of the Thames never responded.
In the end, the sheriff had to use the outdated list from the federal government dating back to 2000. Of 231 jury notices sent out to the various reserves in the area, 229 came back undeliverable. The other two came back indicating the people had died.
In the end, Goodman distinguished Kennedy from Kokopenace, a case that featured a number of indications on the government’s part that it hadn’t been doing that much to include aboriginals on jury rolls. In that earlier case, for example, there was evidence of “incompetent” work by the employee responsible, including the fact there were “little to no efforts made” to get updated on-reserve lists, according to Goodman’s review of Kokopenace.
In the end, Goodman ruled against Kennedy’s application. “I must take into account the necessity for cultural sensitivity,” he wrote.
“However, when band chiefs and councils directly or indirectly decline to provide band lists to the sheriff, for whatever valid reason, and the leaders and decision-makers of these respective communities decline to meet or discuss these issues with representatives of the ministry or the sheriff, I have no evidence before me to determine what other efforts might be reasonably effective.”
Motor vehicle cases (motor tort actions concerning injury —personal or property — caused by a motor vehicle) have been the single top matter for general civil cases historically and have increased by 25,000 in five years, according to statistics released this morning by Statistics Canada. There were 44,000 new motor vehicle cases for 2011-2012.
|Click to enlarge. (Source: Statistics Canada)|
Family law makes up 35 per cent of active cases for the most recent statistics. This number has remained the same for at least five years. It is consistent within Ontario also where there were 265,000 new civil cases from 2011-2012.
According to the data, Ontario accounts for 52 per cent of Canada’s active civil cases. Following is Alberta, which accounts for 22 per cent.
There were 25,000 new family law cases in Canada over the past five years. Divorce makes up 35 per cent of the total number of family cases, and child protection accounts for 10 per cent.
In other civil matters, there were 317,000 new cases in the 2011-2012 period. There were just over 600,000 general civil cases before the courts, 90,000 more than five years previous.
Bankruptcy cases have nearly doubled over the past five years, but the numbers have been steadily declining since 2009, with only 13,000 new cases in 2012.
According to the data, the majority of civil cases are resolved in under 3 months, with just 6 per cent of cases taking over two years to resolve. Two per cent of all civil cases this year were resolved by the parties involved.
There were also 576,000 inactive cases in the courts for 2011-2012. Nearly 30 per cent had been inactive for over four years.
For full statistics on civil actions visit StatsCan's web site.
|Justice Richard Chartier|
Scott’s retirement set off a number of changes within Manitoba’s judiciary. Replacing Chartier is Court of Queen’s Bench Associate Chief Justice William Burnett. He became a judge in 2009 following a stint as partner at Thompson Dorfman Sweatman LLP in Winnipeg.
Moving into Burnett’s role is Justice Shane Perlmutter. Currently a judge of the Court of Queen’s Bench, he becomes associate chief justice as Burnett moves to the Court of Appeal. Prior to becoming a judge in 2011, he also worked at Thompson Dorfman Sweatman and at Fillmore Riley before that. His main areas of practice were civil litigation and administrative law.
The final Manitoba appointment is Justice Herbert Rempel of the Court of Queen’s Bench family division. He replaces Justice Diana Cameron, who left the Court of Queen’s Bench for the appeal court on Nov. 2, 2012. Rempel had been with the court’s family division since late 2011 following a career as a lawyer in adoption matters, corporate commercial law, wills and estates, and civil litigation.
Besides the Manitoba appointments, the federal government also named a new Quebec Superior Court judge on Friday. Justice Karen Kear-Jodoin, a lawyer since 1984 who mainly practised family law, replaces Justice Marie-Christine Laberge following her resignation in January.
The March 1 ruling, which considered a grievance by the Ontario Public Service Employees Union against the provincial government’s treatment of court reporters as independent contractors when it comes to their transcription work, noted the new plan aimed at responding to an earlier finding that the province’s approach was in violation of the collective agreement.
“The employer has made it known to the union as well as the board that its intention is to exercise its management rights to contract out the work of producing transcripts,” wrote vice chairman Nimal Dissanayake.
The ruling follows a 2006 decision that the work court reporters do in typing and certifying transcripts of court proceedings was bargaining unit work rather than additional freelance-type duties beyond their regular courtroom activities.
Under the Ministry of the Attorney General’s framework, court reporters got a per-page fee for transcription work often done outside of regular hours. The union, however, argued transcription work was a key function performed by court reporters that should be subject to the provisions of the collective agreement and the associated remuneration for things like overtime and holiday pay.
Despite the 2006 ruling, the parties have struggled to agree on how to implement it and, as such, the government has maintained the existing regime that essentially treats court reporters as employees for their regular courtroom duties and independent contractors for transcription work. As a result, parties have been back before the board repeatedly since 2010 in a bid to resolve the issue.
Despite the government’s imminent plans to contract out the work and its argument that the board lacked jurisdiction to force it apply the collective agreement, Dissanayake ordered the province to change its approach right away.
“The employer shall forthwith cease its violation of the collective agreement by failing to apply the collective agreement to court reporters, who the board had declared to be employees performing bargaining work when producing transcripts,” wrote Dissanayake.
In the family law case Vilardell v. Dunham, the mother in the case, Montserrat Vilardell, made an application to waive the fees she was being charged for every day of her court hearing.
After considering constitutional arguments by the Canadian Bar Association, B.C. Trial Lawyers Association, and the West Coast Women’s Legal Education & Action Fund, the B.C. Supreme Court ruled the fees were unconstitutional. On appeal, the B.C. Court of Appeal overturned the lower court decision.
West Coast LEAF says the decision will improve access to justice for women, but it doesn’t go as far as they had hoped.
West Coast LEAF had argued hearing fees in family law cases have an unequal impact on women because they are less likely to have the resources to afford them than men. It argued hearing fees “violate women’s equality and security rights and the principles of fundamental justice, and should be struck down on that basis.”
In his decision the trial judge had struck down the hearing fees charged by the Crown in Supreme Court trials as unconstitutional, saying the fees “materially hindered” access to the courts.
The Crown justifies the fees as legitimate efforts to recover costs and promote efficiency at cost recovery.
The Attorney General of British Columbia had argued the case did not present an access to justice problem. If the fees would hinder a litigant, the attorney general says the rules allow the judge to make an exemption.
However, appeal court Justice Ian T. Donald rejected that argument based on the fact the indigency rule applies only to the poor, not to the “struggling middle class who, while not poor in the ordinary sense, cannot afford the fees.”
He wrote: “In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice. The power is found in an enlarged interpretation of the indigency provision.”
The Court of Appeal found hearing fees do pose an unconstitutional obstacle to the courts for many people, including the middle class, without adequate provision for those who are unable to afford them.
The court recognized the current “indigency” exemption was insufficient to capture those who can’t afford the fees, and ordered it be broadened to cover those could not meet their everyday expenses if required to pay fees.
In his decision Donald wrote: “The enlarged scope of the exemption in Rule 20-5, then, should be read as saying ‘impoverished or in need.’ The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.”
Donald allowed the appeal and set aside the order striking the hearing fees rule. While the court did not go so far as to strike down the hearing fee structure as requested it was seen as a small victory.
“Importantly, the court recognizes that women in family law cases, aboriginal persons, those with disabilities, and recent immigrants are disproportionately impacted by the current hearing fee system,” said Kasari Govender, executive director and co-counsel for West Coast LEAF. “While the court did not go as far as we hoped, it is clear that more people — including women in family law matters — will have access to the courts as a result of this decision.”
|Chief Justice Robert Bauman stresses counsel 'must be available to proceed on short notice during the assize week' for the pilot project to work.|
“It’s certainly been a problem getting dates,” says Michael Dew, a Vancouver civil litigator.
At times, Dew claims to have had problems booking long chambers dates from an increasing amount of lawyers seeking appointments at the same time.
“This is a good example of our court taking some initiative to solve a problem, and I hope that counsel will take advantage of it,” says Dean Crawford, a civil litigator and vice president of the Canadian Bar Association British Columbia branch.
For Crawford, the former method for chambers applications is “frustrating for both clients and lawyers” who have prepared for a hearing and arrive at the court “only to learn that you’re not going to be able to proceed.”
In a press release from the Supreme Court of B.C., Chief Justice Robert Bauman said although the project is designed to improve matters, it can not “guarantee that every member on the assize list will be heard” and counsel “must be available to proceed on short notice during the assize week.”
“Like many things, this is an initiative where it’s going to require the co-operation of counsel to get things done efficiently for their clients,” says Crawford. “So it would be my hope that counsel will do that, and take advantage of this to their own benefit.”
“I think it will allow parties more certainty about getting before the court,“ says Dennis Hori, civil litigator and president of the Trial Lawyers Association of British Columbia.
Hori mainly practises in Kamloops, B.C., and claims that Kamloops currently has a similar system to the proposed pilot project that works “quite well.”
Although supportive of the new pilot project, Dew believes the current process for short chambers applications could also be improved. From an oversupply of lawyers waiting to be addressed in short chambers proceedings, Dew says this is a “serious problem” that needs to be improved through a program similar to the new pilot project.
The oversupply came shortly after a new set of Supreme Court Civil Rules were implemented in July 2010 for governing civil proceedings in the British Columbia Supreme Court. Several changes were made to chambers procedures, requiring applications to be filed and have a hearing date scheduled once submitted, instead of a hearing date scheduled after an application was responded to.
About a year after the new policies were in place, the CBA-BC conducted a survey of its members to analyze how practising lawyers found the new policies.
Roughly 55 per cent of survey members either strongly disagreed or disagreed with the new system, while about 50 per cent preferred the old method for chambers applications. About 55 per cent of participants also claimed to have most of their applications rescheduled from their original date.
According to the CBA-BC, changes to the chambers procedures provoked a large number of comments from lawyers. One survey participant claimed “chambers seems to be busier and a higher chance of getting bumped than was the case under the old rules.”
A survey participant also stated the “new system seems to have created a backlog of chambers applications in Vancouver.”
However in order to be placed on the new assize list, applications must require more than two hours, and be less than two days for hearing. Other criteria include approval from all parties involved, as well as an open availability for three days within a scheduled five-day assize week.
Beginning this month, the pilot projects hearing dates are scheduled for six weeks throughout the year, with the last available date scheduled for May 6.
According to Crawford, under the normal process openings wouldn’t be available until May at the earliest.
“A two-week wait as opposed to a four-month wait is quite preferable,” says Crawford, who notes although the chambers application process was formerly a problem, he believes that this pilot project is a “good step to try address it.”
Update 2:50 pm: Comments from Dennis Hori added.
|Restrictions on using devices should apply only when absolutely necessary, says media lawyer Dan Henry.|
But the rule applies in reverse for all others in court: they can’t use their devices unless the judge says otherwise.
“Members of the public have the same freedom of expression enjoyed by members of the media and others listed on the protocol,” says independent media lawyer Daniel J. Henry.
Restrictions on using devices should apply only when absolutely necessary, according to Henry. All of those in court should know the restrictions, he adds.
“Freedom of information is intimately connected to the right of citizenship and shouldn’t be lightly dismissed,” he says.
Henry also predicts it will be practically difficult, if not impossible, to police the use of devices only by those listed in the protocol.
“There is no question that the line between journalists and members of the public is blurring in relaying the information we all share.”
The new protocols come after a team of legal experts proposed more permissive guidelines last year. The team, put together by the Canadian Centre for Court Technology, said it was time to grant every person in court the privilege to transmit information via personal technological devices.
After the proposals came out in the fall, Stephen Bindman, who was part of the centre’s consultation group, told Law Times social media helps advance access to justice.
“More and more Canadians are getting their information and information on the courts from social media,” said Bindman.
While Henry agrees, he says smartphone use isn’t all he wants to see in Canadian courtrooms. He’s a strong advocate for audio-visual access.
If cameras record proceedings accurately and in real-time, journalists and others won’t have to bear the pressure of firing off 140-character tweets as events unfold, he says, and the recordings can be linked to tweets.
Under the new protocols, taking photographs continues to be banned in courtrooms while audio can be recorded for the purpose of taking notes but not for broadcast or sending electronically from the recording device.
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Gail J. Cohen