A week after winning the NDP nomination for Ottawa-Vanier, former federal prosecutor Emilie Taman was in Federal Court Tuesday, asking for a judicial review of the Public Service Commission of Canada’s decision not to grant permission for her to seek nomination as a candidate in the federal election.
|Emilie Taman says many consituents in the Ottawa-area riding she is running in reached out to her.|
In early July, Taman vacated her office, beginning what she called “an unauthorized leave of absence” to enter the contest for Ottawa-Vanier’s NDP nomination.
She had applied for a leave of absence last year, but the Public Prosecution Service of Canada refused, arguing her ability to return to work after the political race would be “impaired or perceived to be impaired.” After receiving a series of warning letters, Taman was fired weeks after leaving her office.
“I received I think it was three warning letters which basically indicated that I was to return to work immediately or face termination for abandonment of position,” she says. “I followed up by saying I don’t have an intention to abandon my position, and could you please just wait until my judicial review hearing.”
But the PSC, she says, replied that “despite my representations it had been determined that I had abandoned my position.”
Even if the judicial review is successful, it won’t result in her being reinstated, says Taman. Although she hopes a favourable ruling would help her termination grievance.
Above all she’s hoping it results in clearer guidelines for politically minded federal prosecutors in the future.
The PSC is declining to comment on the case, given that it is currently before the court. In addition, “The Public Prosecution Service will not comment on personnel, past or present,” a spokesperson told Legal Feeds.
The nomination battle appears to have been tightly contested. Although the party doesn’t release the number of votes each candidate received, the vote, which involved four candidates, went down to the wire with three ballots.
“It was a long night,” she says.
The media attention around her fight with the PSC likely helped her, she says.
“The riding obviously has a lot of public servants living in it, so a very large number of people reached out to me directly to express their unhappiness with how I’d been treated,” she says.
Party members may also have liked her family background. She is the daughter of Louise Arbour, the former Supreme Court of Canada justice and UN High Commissioner for Human Rights.
Now Taman finds herself up against someone she concedes is a formidable opponent: Liberal incumbent Mauril Bélanger, who has held the seat for 20 years. The riding has a solid history of Liberal dominance, both federally and provincially.
Nevertheless, Taman says she’s excited and hopeful about taking on Bélanger.
“The party has a huge amount of momentum right now,” she says. “I feel that I have momentum as a candidate, and based on how things went [on nomination night], I feel really confident, and I look forward to engaging with him and seeing where that goes.
“I appreciate it’s an uphill battle and I’m facing an adversary who’s experienced, but I’m attracted to what the NDP’s trying to do and I think I’m going to do a good job in pitching it to constituents.”
Update Sept. 18: To clarify Taman's judicial review is regarding the Public Service Commission's refusal to allow her to run for office and that she was terminated by her employer, the Public Prosecution Service of Canada.
|‘There is a tilting of the balance of evidentiary proof, very much in favour of the government,’ says CBA president Michele Hollins.|
Many of the concerns raised in the report involve the greater state powers outlined in bill C- 51, without a similar increase in oversight, as well as the broad and often vague language used in the proposed legislation.
“Not only are we creating offences to broaden the scope, there is a tilting of the balance of evidentiary proof, very much in favour of the government,” says Michele Hollins, president of the CBA.
The recommendations in the report are “presented in a helpful and non-partisan way,” says Hollins, who is hopeful the federal government will recognize the expertise of the CBA in this area.
“The safety of Canadians is paramount,” says Hollins. “I don’t think anyone takes issue with the objective. This is really about the mechanics,” of Bill C-51 and whether its contents will help achieve that goal in a way that also conforms with the Charter of Rights.
Three of the areas of concern highlighted in the report are the increased powers proposed for the Canadian Security Intelligence Service, increased information sharing powers for government agencies, and several of the amendments to the Criminal Code.
The changes to the CSIS Act would allow its agents to seek a warrant to do anything that is “reasonably necessary” to “reduce” a “threat to the security of Canada.” These warrants would not be subject to the Charter.
The proposed changes are “unprecedented” says the CBA in its report.
“It is untenable that the infringement of Charter rights is open to debate, in secret proceedings where only the government is represented. Parliament should not empower CSIS or judges to disregard the constitutional foundations of our legal system.”
Bill C-51 would establish new legislation that permits government institutions to share personal information about “activities that undermine the security of Canada,” which would include “interference” with “critical infrastructure” or “the global information infrastructure.”
These provisions “cast the net very broadly” says Hollins and could be used against Aboriginal or environmental activists.
Many of the proposed changes to the Criminal Code are “already captured” by existing sections, says Hollins. As well, the concern over the amendments is the “very broad or vague language,” that is used.
The CBA report notes the proposed change to the existing “advocating or promoting terrorism” offence, refers to advocating “terrorism offences in general.” It would apply to all “statements,” which may include private e-mails and text messages.
“If widely construed, it will be subject to significant challenges, at great cost to taxpayers and may include activity more political in nature than dangerous,” says the CBA.
|‘These things that used to be better benefits in the public sector are no longer there,’ says Len MacKay.|
“Historically, they’ve always told us through the years that they don’t use the time keeping to keep an eye on us,” says Len MacKay, president of the association that represents federal government lawyers.
According to a recent letter to MacKay from Deputy Justice Minister William Pentney, the department is increasing the “average time spent on the delivery of legal services” to 1,400 hours per year, up from 1,300. While MacKay notes the department has long had the targets for what it said were budgeting purposes, the move to incorporate them into performance reviews is new.
The goal, according to Pentney’s letter, is to reduce the time spent on non-legal activities.
“While the participation of counsel to non-legal services work remains important, the department will examine the extent of counsel involvement in corporate and non-legal activities to ensure that their time is used most efficiently,” he wrote, adding the department also uses the numbers when it comes to collecting revenues from other ministries and agencies.
MacKay has a couple of concerns about the change. First, lawyers can only bill for work on behalf of clients.
“But many lawyers don’t work necessarily for clients, so in many ways the target is artificial,” he says.
Also, he notes the targets won’t include administrative duties, something lawyers have had to take on more of as the government has cut staff in recent years.
“Lawyers are having to work more administrative duties, which can’t go towards billable targets, for example,” he says.
While Pentney’s letter hints at the need to move lawyers away from such tasks, MacKay doubts that’ll mean more support staff to do them.
“In this current climate, in this current government, we’re not optimistic that’s going to happen,” he says.
More generally, MacKay says the move highlights the government’s efforts over the years to have the department reflect a more private-sector approach. He notes part of the implicit deal in taking a government job with the attendant lower salary was a better work-life balance and benefits. But with changes to things like severance and pensions and now the increased focus on billable hours, those advantages are eroding.
“These things that used to be better benefits in the public sector are no longer there,” he says, noting the new approach may prompt the association to push harder on the salary issue (which he acknowledges lawyers made major gains on in the last round of bargaining).
The 1,400-hour target is in line with the median reported by Canadian Lawyer in its recent compensation survey. That survey put the median at 1,470 hours, although the targets are often higher at large national and global firms. When it comes to federal lawyers, MacKay says the target is generally doable but not necessarily for all lawyers. “I think they’re putting the hours in,” he says.
“I think it’s realistic for some folks because they do a job where it’s almost entirely billable work,” he adds. “But for others, it’s not going to be realistic.”
|The ICJ urged Harper and MacKay to withdraw or apologize for their comments and review the law and practice for the appointment of judges.|
“Nothing in international standards would render such contact inappropriate,” wrote commission secretary general Wilder Tayler in a letter to Heckman last week.
“While the eligibility of a particular candidate appointed could have potentially come before the Supreme Court (which indeed in the end it did), simply reminding officials of the requirements of applicable law would not in the ICJ’s view constitute ‘a comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process’ (as expressed in Principle 2.4 of the Bangalore Principles,” he added, referring to the Bangalore principles of judicial conduct.
In May, federal officials publicly suggested McLachlin had inappropriately contacted the Prime Minister’s Office the looming appointment of a Quebec judge to the Supreme Court. The allegations suggested McLachlin had lobbied against Nadon’s appointment, which the government was suggesting was before the courts. McLachlin clarified her actions in a statement at the time. “At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts,” the statement noted.
On July 29, 2013, according to her statement in May, McLachlin provided the parliamentary committee dealing with the appointment of the next Supreme Court judge with her view on the court’s needs. Two days later, her office called the minister of justice and Harper’s chief of staff to “flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court,” according to the statement.
The same day, she spoke with MacKay to flag the potential issue. While her office made preliminary inquiries to have a discussion with Harper, she ultimately decided not to pursue a call or a meeting, according to the press release.
“Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue,” said McLachlin.
“At no time did I express any opinion as to the merits of the eligibility issue.”
In its letter last week, the commission, an organization comprised of up to 60 international judges and lawyers concerned about the respect for international human rights standards through the law, essentially accepted that version of the events.
“The ICJ has been provided with no evidence that the Chief Justice had any intention in contacting the Minister of Justice and the Prime Minister’s Office other than to alert them to the possibility that a legal issue could arise with the nomination of a Justice of the Federal Court in relation to the eligibility requirements of the Supreme Court Act,” wrote Tayler.
“The ICJ has not been provided with evidence that suggests that the Chief Justice either intended to or expressed a view on the merits of that legal issue or the merits of any individual.”
Tayler said McLachlin’s statements to the media after the issue arose “were consistent with international standards and within the scope and role of her office in defending the public confidence in the judiciary in light of the allegations she had been informed were then being made public, i.e. alleging that she had lobbied against a particular nominee.”
Tayler went on find a problem in Harper’s statement on May 1 about McLachlin in which he said neither he nor MacKay would ever call a judge about a matter that was or could be before the court.
“This was unfairly conflating the issue of the executive seeking to influence a court on the merits of a matter in litigation, with the Chief Justice reportedly seeking to alert the nominating authorities to the content of and the potential existence of an issue under the law, in the course of a nomination process in which consultation already takes place between different branches of government, and before the executive had made a three-person short list or nominated a candidate.”
Tayler urged Harper and MacKay to withdraw or apologize for their comments and review the law and practice for the appointment of judges. In particular, he referred to international standards that call “for the establishment of bodies that are independent of the executive, plural and composed (even if not solely) of judges and members of the legal profession.”
He also raised concerns about judicial independence.
“The ICJ considers that the criticism was not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice,” he wrote.
It’s a comment University of Ottawa Faculty of Law professor Carissima Mathen found to be fair given the concerns about judicial independence.
“I think that the concern that’s raised by the whole interaction . . . is that they appeared to be drawing the court into a political battle and painting the court as a political adversary in a way that would encroach on the independence of the judiciary were the court to be seen in that particular light,” she says.
Mathen also agrees the government has other avenues to address the issue rather than making public comments about it. They include making a complaint to the Canadian Judicial Council, seeking McLachlin’s recusal from the Nadon matter before the Supreme Court, and, in the most extreme and unlikely of cases, trying to have a judge removed from office.
“I thought it was a very sober, measured letter,” she says of the commission’s response. Mathen also believes the letter carries significant weight. “It just gives another indication of the notoriety of this incident,” she says.
“This isn’t the kind of attention you want to have focused on Canada,” she adds.
Update 5pm: Comments from Mathen added
|Trillium Power Wind Corp. is suing the Ontario government for cancelling offshore wind projects. (Photo: Shutterstock)|
Trillium claims “Ontario unlawfully deprived it of a lucrative offshore wind-powered electric generation project, for an improper political purpose, specifically an electoral purpose,” according to the appeal court’s Nov. 12 ruling in Trillium Power Wind Corp. v. Ontario (Natural Resources).
Trillium also argues the province intended to cripple the company financially so that it wouldn’t be able to fight its actions.
As a result, Trillium is seeking $2.25 billion in damages and more than $5 million in out-of-pocket expenses that it spent in preparing its first wind farm off Prince Edward County, Ont.
Justice Robert Goldstein of the Ontario Superior Court of Justice dismissed Trillium’s claim last October. However, the appeal court disagreed with part of his decision and narrowly allowed the appeal, finding that the government intended to hurt Trillium.
“We agree with the motion judge that it was plain and obvious, and beyond all reasonable doubt, that the appellant could not succeed in its claims for breach of contract, unjust enrichment, taking without compensation, negligent misrepresentation and negligence, and intentional infliction of economic harm. These causes of action were therefore properly dismissed by him, for the reasons he gives,” wrote Court of Appeal Justice Robert Blair.
“We do not reach the same conclusion, however, with respect to the claim for misfeasance in public office. We would allow the appeal on that cause of action alone and let the claim proceed, but only on the narrower basis that Ontario’s conduct was specifically targeted to injury Trillium.”
In allowing the appeal only on the claim of misfeasance in public office, the court said: “It follows that Trillium should be entitled to proceed based on the allegations that the Government’s actions were specifically meant to injure the appellant. The appellant asserts that the Government’s actions were targeted to stop Trillium’s offshore wind project before Trillium’s financing was in place in order to deprive Trillium of the resources to contest the Government’s decision to cancel the wind projects in Ontario.”
|Heenan Blaikie LLP's Pierre Belllavance has joined the Quebec Superior Court bench.|
In Saskatchewan, the government has elevated Court of Queen’s Bench family law division Justice Jacelyn Ryan-Froslie to the appeal court. She replaces Justice G.A. Smith following her retirement last year.
In Ontario, the new Court of Appeal judges are justice Gladys Pardu and Mary Lou Benotto. Pardu replaces Justice Robert Sharpe, who moved to supernumerary status in June. She has been a judge since 1991. Benotto replaces Justice Robert Blair, who also became a supernumerary judge earlier this year. She has been on the bench since 1996.
And in Quebec, the government has named Superior Court Justice Claude Gagnon to the Court of Appeal. He replaces Justice F. Thibault, who became a supernumerary judge in April.
Other judges taking on new positions include Saskatchewan Provincial Court Justice Darin Chow. He joins the Court of Queen’s Bench family law division after Justice D.L. Wilson transferred to Saskatoon. The government has also named Prince Albert, Sask., lawyer Lyle Zuk to the Court of Queen’s Bench to replace Justice R.D. Maher. Maher became a supernumerary judge in August.
In Quebec, Heenan Blaikie LLP lawyer Pierre Bellavance becomes a Superior Court judge. He replaces Justice Y. Alain, who became a supernumerary judge last year. Bellavance had been a partner with Heenan Blaikie since 1998 who practised in a number of areas including civil litigation as well as real estate, construction, municipal, and administrative law.
In Alberta, the government has named four lawyers to the bench. Calgary Alberta Securities Commission lawyer Glenda Campbell joins the Court of Queen’s Bench. She replaces Justice C.S. Phillips, who became a supernumerary judge in July.
Also joining the Court of Queen’s Bench are Edmonton lawyers Dawn Pentelechuk and Frederica Schutz. Pentelechuk replaces Justice A.B. Moen, who became a supernumerary judge this fall, while Schutz fills the vacancy left by Justice L.D. Acton. Acton becomes a supernumerary judge on Dec. 1, and Schutz’ appointment is effective that day.
Finally, the government has named Corina Dario, a lawyer with Smart Technologies ULC in Calgary, to replace Court of Queen’s Bench Justice S.M. Bensler. Bensler became supernumerary judge in August.
|Immigration lawyer Michael Niren says he doesn't understand why the government plans to admit more live-in caregivers when there is already a backlog.|
Canada will admit 17,500 permanent residents through the live-in caregiver program in 2014, the government announced. That’s an all-time high since the program began in 1993.
In the same announcement, the government acknowledged that delays in the program had reached “unacceptable” levels.
“I’m not understanding the logic behind what the government is doing,” Niren says. “If the concern is backlog, why open the floodgates so that more applicants are going to be applying?
“Are they going to add more resources to embassies to process these cases? It remains to be seen.”
Previously, when applications clogged up the parental sponsorship program, the government shut it down and replaced it with a 10-year super visa for parents and grandparents. Although it was “painful,” the strategy had logic to it, says Niren.
Niren adds there’s no denying the great need for live-in caregivers in Canada, especially in major cities. But he says a lot of his clients are frustrated over having to wait years before caregivers arrive.
“Nannies are needed. There’s no doubt about it,” he says, adding he’s all for increasing the number of caregivers coming to Canada.
“I’m just afraid that it will cause greater backlog and [longer] processing times.”
In a press release, Citizenship and Immigration Minister Chris Alexander said the government acknowledges the backlog issue but didn’t say how it plans to reduce it.
“Wait times in the live-in caregiver program have grown to levels that are unacceptable to caregivers,” he said. “Our government has already slashed application backlogs for skilled workers and parents and grandparents. Now, we turn our attention to the [live-in caregiver program].”
His technology focus is serving him well as a current articling student, he is splittting his term between the technology licensing group at BlackBerry — where he also summered — and McCarthy Tétrault LLP in Toronto.
The idea for the service came to him during a securities class in law school, he tells Legal Feeds.
“The instructor was a partner for McCarthys and she was talking about how they were working on some securities deal and they just happened to notice this budget act that affected the deal she was working on,” he says. “And I was thinking, ‘Hmmm, that probably shouldn’t happen, you should get notified whenever there’s something relevant to you in terms of legal changes.’”
So he created OntarioMonitor.ca, which allows users to follow the goings-on at the Ontario legislature through keyword-based monitoring. Users come up with keywords they would like more information on and any materials that contain those keywords are e-mailed to the users.
For example, if a keyword is mentioned during question period at Queen’s Park, users will receive an e-mail stating who said it, when it was said, what context it was said in, and any other relevant details. Also, if new bills are introduced or changes are made to existing bills containing those keywords, users will be notified.
Cameron-Huff says he originally thought the service would be most useful for people in government relations, but has found it’s also beneficial for lawyers.
“It would really depend on your practice area on how you could use [the service], but definitely changes in regulations is something that [lawyers] need to know about,” he says.
The service is now celebrating its one-year anniversary by offering new features and a free three-week trial for new users.
As a part of its new features, OntarioMonitor.ca will now notify users if ministry press releases contain keywords and they will also be alerted when new sections of legislation become law.
The price ranges from $100 to 250 per user, per month, depending on how many users sign up.
Cameron-Huff has been developing web sites since 2004. He also runs a software and development company called Summerhill Design in Kingston, Ont. He has won various programming competitions in Canada and the United States. In 2008, he joined Ralph Nader’s U.S. presidential campaign team as a software developer.
The lawyers include Thomas Johnson McInnis, who practised at Halifax law firm Weldon McInnis until 2005. Besides his work in the law, McInnis was previously a member of the Nova Scotia House of Assembly from 1978-1993 and ran for the federal Progressive Conservative Party in 2000. He’s currently president of the Sheet Harbour & Area Chamber of Commerce and was appointed to the Halifax Port Authority in 2008.
Also joining the Upper House is lawyer Paul McIntyre of Charlo, N.B. Currently the chairman of the New Brunswick Review Board, McIntyre had previously served in that role from 1985-1998. He was also senior partner at the McIntyre Law Firm in Dalhousie, N.B., until 2008. In addition, he has a long history of community involvement.
Harper also appointed Ottawa citizenship judge Thanh Hai Ngo to the Senate today. Formerly chairman of the Employment Insurance Board of Refugees in Ottawa, Ngo became a citizenship judge in 2007. Besides his work for the government, Ngo is active in the Vietnamese community in Canada and overseas.
The other appointments include Diane Bellemare, an economist who previously ran for office provincially as a candidate for the Action Démocratique du Québec, and Tobias Enverga Jr., a Toronto resident and project manager at the Bank of Montreal.
“I look forward to working with these talented individuals,” said Harper, who noted the new senators have all pledged to support the government’s efforts at reforming the Upper Chamber. “Their skills and experience will help to further advance our shared goals of jobs, growth, and long-term prosperity for all Canadians.”
Findlay took 54.2 per cent of the vote in her riding on May 2. She had 14,870 more votes than her closest rival NDP candidate Nic Slater.
She has practised law in Vancouver and the Lower Mainland most of her life, representing clients at every level of court including the Supreme Court of Canada. Findlay has been active in the Canadian Bar Association and is the founding chairwoman of the B.C. Women Lawyers Forum and National Women Lawyers Forum, and a former 1997-98 president of the CBABC. She was also a member of the national task force on court reform.
Her community involvement includes working with MP Jim Cummins on fisheries and native land management issues, serving on the Vancouver City Planning Commission and chairing it in 1987, and appearing before the House of Commons and the Senate Committees on Aboriginal Affairs.
Graduated from the University of British Columbia her LLB in 1978, and was called to the bar of British Columbia in 1979.
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