One Toronto neighbourhood may be able to find some peace this holiday season after the Ontario Court of Appeal finally settled its property dispute — and along the way created some novel legal interpretation.
|The lane between homes on Brock Street and Cunningham Avenue. (Photo: Google Earth)|
The laneway, however, was being used by the owners of at least three homes sitting adjacent to the land on Brock Street. The Brock homes were situated near a rail overpass, so cars were unable to stop outside. Their only access to their homes was via the laneway.
This unfortunate example of poor city planning led to the nasty neighbour spat. In 2013, the Cunningham owners — having found no explicit right of way in their deed for at least 40 years (the statutory limit for title investigations) — decided that they were within their rights to block access. They erected a pole in the middle of the lane.
The Brock owners, left without access to their homes, applied for an injunction against the Cunningham owners. As it happened, the deeds for the Brock homes did refer to a right of way created prior to 1960, even though the stipulation had vanished from the Cunningham chain of title. The application was granted, leading eventually to last week’s showdown at the Court of Appeal.
On Friday, the homeowners on Brock Street secured their laneway, with the OCA ruling that historical right-of-way claims that had fallen off the registry were exempted from a 40-year expiration date, as long as the right way was being used and enjoyed continuously.
“Fairness suggests that a right of way that was once registered and continues to be openly enjoyed and used should be exempted from the operation of the 40-year rules set out in Part III [of the Registry Act],” wrote Justice Janet Simmons on behalf of the court. “This must have been what the Legislature intended — and is what a proper interpretation of [the act] requires.”
“In my view, however, to . . . qualify for the exception . . . a claimant must show open enjoyment and use continuously from the expiration of the 40-year expiry period . . . “
James Morton, who represented the appellant Cunningham owners, says the court’s pronouncement on historical, unregistered rights of way will have significant bearing on land disputes in urban centres in Ontario.
“It does suggest that land title is not as absolute and fixed as I would have thought,” says Morton, “and it certainly suggests that the 40-year search rule is not as fixed, which is problematic to some degree for lawyers because,” he sighs, “it means you cannot rely completely on the . . . search documents.
“It’s certainly going to pose a problem for land title insurers who are going to have to somehow recognize that there can be these unregistered and effectively unfindable interests in land.”
Asked whether the court has conflated the concept of a land “claim” (which until now had to be explicit) and a “right” (which is implicit), Morton acknowledges that it may very well have done so — although not without due consideration.
“I do think it’s fair to say that they conflated the two,” he says, “but they conflated them intentionally. To my thinking, it creates some uncertainty in the land title system, but the court is balancing uncertainty with fairness, and they came down with the view that fairness required a little bit of uncertainty.”
Litigator Joe Groia was back in court this past week to challenge the Law Society of Upper Canada’s findings of misconduct for incivility against him following the Bre-X scandal some 15 years ago.
|Groia, who is now an LSUC bencher, spent three days this week in the Court of Appeal making further arguments in his civility case.|
Groia’s counsel argued that the penalties levied against him were arbitrary, lacked “meaningful explanation” and “intelligible reasons” and asked they be overturned.
They further argued that in denying his appeal earlier this February, the Divisional Court erred when it when it failed to consider that Groia’s conduct was never criticized by the trial judge and in applying a new misconduct test in making its determination.
“The Divisional Court established a new test for when uncivil conduct amounts to professional misconduct. This test is satisfied when such conduct ‘calls the administration of justice into disrepute,’” wrote Groia’s legal team, led by Earl Cherniak of Lerners LLP, in its factum.
“The new but vague test, and its application by the Divisional Court, creates an unreviewable prosecutorial discretion in the hands of the LSUC, and results in uncertainty and lack of meaningful guidance for lawyers, who are now at the whim of their regulator.”
The case has prompted an ongoing debate around what exactly constitutes incivility in the courtroom. It has turned into a tug of war on where to draw the line between the need to allow for zealous advocacy by fearless counsel and the importance of civil communication in the courtroom.
Groia’s factum said that question, as well as the question of who determines the boundaries — a trial judge or the regulator — are at the core of the appeal.
“The result in this case is a tragedy for the public interest, the legal profession and for Mr. Groia. If his conviction is allowed to stand, trial judges will no longer truly control the proceedings before them, lawyers can no longer rely on how trial judges choose to conduct a criminal trial, and clients can no longer rely on their lawyers to speak their minds freely in open court, for fear that they too will be prosecuted by their regulator,” the factum of appeal states.
“Respect for judges, lawyers and the dynamics of a criminal trial will have given way to the LSUC’s ultimate control of the trial process.”
Groia’s tone and behaviour during his late-1990s defence of John Felderhof, the former Bre-X Minerals Ltd. vice chairman, were the basis for the finding of professional misconduct against him. Following a June 2012 disciplinary ruling, the LSUC suspended Groia for two months and ordered him to pay $250,000 in costs. He appealed and in November 2013, the society’s appeal panel cut Groia’s suspension in half, but agreed with the hearing panel that his behaviour during the Bre-X trial was out of line. It also reduced the costs award against Groia to $200,000.
He appealed to the Ontario Divisional Court in February of this year, but that was dismissed with $30,000 in costs ordered paid to the LSUC, and he turned to the Court of Appeal to challenge that ruling. In the Divisional Court hearing, a request by the LSUC seeking the original penalties against Groia be reinstated was also dismissed.
At the court of appeal, the LSUC, led by Thomas Curry of Lenczner Slaght Royce Smith Griffin LLP, argued that while a lawyer has “a duty to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case” it must be done “by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing.
“Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality, because, unless order is maintained, rights cannot be protected,” the LSUC stated in its factum, requesting the court dismiss the appeal with costs.
In terms of the test used by the divisional court, LSUC’s counsel argued it was “inconsistent with the weight of authority concerning the deference owed to the regulator engaged in a line drawing exercise such as this.”
“There was no basis for the Divisional Court to interfere with the formulation of the test for courtroom incivility on the record before it. The Appeal Panel was owed deference on the point.”
A list of interveners, including the Advocate’s Society, Attorney General of Ontario, Canadian Civil Liberties Association, the Canadian Defence Lawyers Association, Ontario Crown Attorney’s Association, and the Ontario Criminal Lawyers Association participated as well, requesting the court reverse the decision. Although they too disagree on certain points of the civility debate.
The AG, OCAA, and CDL agree the new misconduct test from the Divisional Court is an “unworkably high standard.” The TAS and CCLA stand by the test, although the CCLA argues it was misapplied in Divisional Court.
“The important issues that divide the parties and the interveners require adjudication by this court,” the interveners stated in their reply factum. “However, it is Mr. Groia who has paid a terrible price in this case: by his financial commitment to continue to defend Mr. Felderhof long after his ability to pay legal fees ran out; in the damage to his reputation; and by placing his career and livelihood in jeopardy to mount a defence to the charges when the LSUC argued that it was an abuse of process for him to even try to do so.
“By defending himself, he vindicated the right of all trial counsel to defend themselves from similar LSUC allegations of incivility and abuse of process. This conviction truly cries out for reversal,” the interveners stated.
Media representatives and counsel for the LSUC declined to comment as did Groia and his counsel until there is a decision.
The Ontario Court of Appeal has set the stage for a major ruling on bankruptcy protection after striking down a lower-court decision that sought contempt proceedings against a defendant who had already declared bankruptcy.
|Michael Jaeger says federal provisions under the BIA offer broad protections from creditors as well as unnecessary court proceedings.|
The case stems from a $105,000 award for which the defendant was liable to the plaintiff. A couple of years later, the plaintiff, who had still not been paid, sought examination of the defendant’s finances in court.
The defendant failed to show up for the first examination and then declared bankruptcy one day before the second examination. The plaintiff filed a motion for contempt, and months later the judge issued his decision that, regardless of the bankruptcy, the contempt motion should proceed.
In his decision, Superior Court Justice John Harper wrote:
“I am of the view that the motion for contempt before me is one that goes directly to the issue of the court’s ability to enforce its judgments. The order I made was an order that called for the defendants to do certain things. Whether he did them or not cannot be caught up in his choice of the timing of his filing for bankruptcy.”
Defence counsel appealed the motion, insisting that the Bankruptcy and Insolvency Act provides for an automatic and all-encompassing stay of proceedings, and that only compelling reasons, such as allegations of fraud, can be used to lift the stay. Here, no such allegations were presented.
Plaintiff counsel argued that the decision to set a date for a proceeding was not a “final” decision but rather an interlocutory one, and therefore could not be appealed. Defence counsel, meanwhile, insisted that his client’s bankruptcy was being ignored and that he was being denied a substantive defence.
The OCA last week sorted things out, siding with the defendant. In its decision, court writes:
“ . . . the only question before Harper J. — and it was a question of law — was whether Houghton could still be liable for contempt though he had declared bankruptcy. Harper J. decided that question. . . . Houghton has potentially been deprived of a right or defence that would have ended the proceedings against him. For this reason, Harper J.’s judgment is a final order.”
Having determined that the appeal can proceed, the court will now turn its attention to the merits of the appeal, and whether contempt proceedings can commence against a defendant who has already declared bankruptcy.
Defence counsel Michael Jaeger says the Superior Court judge may have been annoyed at his client’s refusal to obey court orders, but federal provisions under the BIA offer broad protections not only from creditors, but from all unnecessary court proceedings.
“Section 69 [of the BIA] says no creditor has any remedy against an insolvent person or shall commence or continue any action, execution or other proceeding,” says Jaeger. “I’m saying that’s really wide, and you can drive a bus through it, and it applies to contempt proceedings. It’s any remedy.”
While Jaeger says he can understand the judge’s desire to have orders obeyed, he argues that the authority of the court in civil matters stems from the pursuit of a financial award, which bankruptcy has now taken completely off the table.
“He’s got no assets,” says Jaeger. “So the practicalities of being able to ask him questions . . . I ask, to what end? If they were asking questions because he defrauded their client, that might be a different thing, for which you would need leave [to lift the stay]. But there’s no allegation of fraud here.
When Asad Ansari was sentenced in October 2010, he had “no reason to appeal it,” says his lawyer John Norris.
|John Norris says he is seeing more clients looking for help as they learn about the possibility of losing their citizenship due to convictions and sentences.|
But in 2014, nearly four years after his sentencing, the federal government sent a letter to Ansari notifying him his citizenship may be revoked in accordance with the newly passed Bill C-24. The controversial bill, passed under the government of Stephen Harper, gives the minister of immigration powers to strip Canadian citizenship from dual citizens convicted of terrorism and sentenced to at least five years in prison.
Ansari had long missed the deadline to appeal his sentence, but yesterday, the Ontario Court of Appeal extended that deadline due to the retroactivity of the citizenship law, which Ansari was not aware at the time of his sentencing.
“. . . The collateral consequences — loss of Canadian citizenship — are of such magnitude as to render it unjust to deprive the applicant of the opportunity to seek a variation of the sentence to remove himself from the reach of the amendment,” the unanimous bench said, adding “the interests of justice favour the extension” of the appeal window.
“To refuse the order, a substantial injustice may occur, wrought by legislation not in force or within the reasonable contemplation of any of the participants in the trial process, but made retrospective by an enactment passed years later,” said the court.
Ansari was convicted of participating in the activities of a terrorist group. He was found to have gone camping with members of the Toronto 18 near Washago, Ont., and participating in marching and simulated combat exercises, some of which were videotaped. Later, he helped produce a video for the leaders of the group to use for recruitment purposes.
Ansari already tried, unsuccessfully, to appeal his conviction.
“If his conviction had been overturned, then that would [have been] the end of his exposure to potential citizenship revocation. But the act also requires that you’ve received a sentence of five years or more for that conviction,” says Norris. “So even if that conviction stands, if he only deserved a sentence of less than five years, that would also get him out from under the provisions.”
Norris says his practice is seeing more and more cases of clients looking for legal help as they learn about previously unknown immigration and citizenship consequences of their convictions and sentences.
“This ruling isn’t going to encourage people to do one thing or another; it’s these other changes [in the law] that are giving people reason to come to court,” he says. “And now this ruling gives a very nice framework for analyzing whether they should get an extension or not.”
Norris says his client is also challenging the constitutionality of Bill C-24 at the Federal Court. It’s unclear what would happen to that challenge, given the Liberals’ election promise to repeal the law.
“If that happens, then of course there would be no reason to pursue the constitutional challenge but until that happens, that challenge remains before the Federal Court,” he says.
The Ontario Court of Appeal has rattled the title insurance industry with it’s ruling last Friday that the standard form insurance contract covers a homeowner who later learned that a support wall had been illegally removed by the previous owner, contrary to the building code and municipal approval.
|Court ruled defects from renovations that don’t meet code or have municipal approval are covered by title insurance policies. (Photo: Shutterstock)|
“Title insurance is probably, at this point in time, one of the most widely distributed insurance policies in the country,” he said, noting that almost every home purchaser now obtains both title and fire insurance coverage.
However, he said, the scope of what title insurance actually covers remains a bit of a mystery, since there is a lack of case law on the topic in Canada.
“I think there’s been a major gap in the law on title insurance, given the incredibly widespread use.”
This case, he says, casts light over that shadow.
Real estate lawyer Bob Aaron added that the case is a “big win for homeowners.” He said it means if “there was illegal work done in the house that didn’t comply with the building code, the title insurance policy would cover a post-closing work order from the city.”
In MacDonald v. Chicago Title Insurance Co. of Canada the MacDonald homeowners bought a Toronto, multi-story home in 2006. In 2013, they learned a load-bearing wall had been removed during renovation work undertaken by the previous owner without a building permit. That made the second floor unsafe.
The city issued a remediation order, requiring the couple to temporarily support the floor and they claimed under their title policy.
The couple brought a summary judgment motion, but the lower court judge ruled their title policy did not cover the situation and held their title was unaffected by the illegal construction because the house still remained marketable, albeit not worth what is was before the defect was discovered.
He noted the city work order was not registered on title, and he granted summary judgment in favour of Chicago Title.
On appeal, however, Justice C. William Hourigan disagreed with the motion judge’s interpretation of the contract. Hourigan said the motions judge acted on his “own volition” when he held that for a municipal work order to affect an owner’s interest in their property it must be registered on title.
Municipal work orders, he wrote, “are a defect that can only be discovered by what are commonly known as ‘off-title searches.’”
LAWPRO, which intervened in the case, provided evidence involving a 2005 agreement between it and the major title insurers, where the real estate transaction levy would be waived in exchange for title insurers releasing Ontario lawyers for any claims arising under a policy and indemnifying lawyers against any settlements or judgments involving title insured transactions.
LAWPRO’s affidavit stated it understood the definition of title meant more than claims and impediments registered against title, but included defects that could only be discovered through off-title searches.
LAWPRO argued if the lower court ruling wasn’t overturned, then its agreement with title insurers would not cover claims that arose off-title and LAWPRO would bear the responsibility even though it waived the transaction levy.
Hourigan agreed, noting that “the restrictive scope of title insurance contemplated by the motion judge would cause chaos in the real estate bar as, no doubt, purchasers of title insurance throughout the province has instructed their solicitors not to conduct the off-title searches on the understanding that such defects were covered by their title insurance.”
The result, he said, was an “unduly restrictive interpretation of the coverage, and that amounted to an error of law.
Hourigan cited the section of the policy dealing with unmarketable title and disagreed with the motion judge’s finding that the homeowner’s title was not affected, because they could still sell their house.
“The fact that someone might be willing to purchase a dangerously defective building does not mean that it is marketable under the title policy.”
He noted that the marketability provision needed to be construed broadly under insurance contract interpretation principles.
Hourigan said the danger flowed directly from the previous owner’s failure to obtain the necessary municipal approval for the changes, and that failure made the property unmarketable within the definition of the title policy.
He awarded the couple their costs for the appeal and the earlier motion application.
When reached, Robert Dowhan, counsel for Chicago Title had yet to discuss the case with his client and declined to comment.
For his part Tighe said he argued that “title is the legal snapshop of what you house is,” and he believes the case could have far-reaching impact.
“There’s a lot of properties that have been renovated or built that have all sorts of issues. It’s very, very common. The question becomes whether the construction or building issue is a title issue.”
Aaron added that he didn’t think the Supreme Court of Canada would give leave to an appeal. In fact, he said, the MacDonald ruling “changes a lot of litigation in progress. There might be a lot of settlements coming up pretty quickly.”
As my first blog, I thought about writing a piece on some interesting court decision, such as the Nov. 25 ruling in Anderson v. Attorney General of Canada, where the Supreme Court of Newfoundland Trial Division found the federal government committed an abuse of process in a class action involving five schools, dormitories, and orphanages in Newfoundland and Labrador. After all, it’s not often that the federal government is found to have committed an abuse of process.
The actions, being prosecuted by a group of firms, including Ches Crosbie Barristers and Kirk Baert, of the Ontario firm Koskie Minsky LLP, are based on negligence and breach of fiduciary duty.
The feds got their knuckles wrapped by Justice Robert Stack after counsel for the attorney general sought to make a claim apportioning damages for any fiduciary duty among various parties. However, Stack took great exception to that, noting that the Crown raised the matter in an earlier decision in the case involving Justice Gillian Butler and lost.
He called the Crown’s position nothing more than a “collateral attack” on Butler’s ruling, and an attempt to re-litigate the matter, which amounted to an abuse of process.
“The ship of apportionment of fault for breach of fiduciary duty set sail two years ago. It is not returning,” he wrote when ruling that the federal government pay for the costs of the portion of the application dealing with the apportionment question.
Then I thought, I could also write about one of the many upcoming cases before the Ontario Court of Appeal or the Supreme Court of Canada, which lawyers would find interesting, such as CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, an important mortgage fraud cause dealing with priorities, which is currently before the Ontario Court of Appeal.
Of course there is also pending legislation, like bill 5, the Ontario respect for municipalities act (City of Toronto), which if it ever saw the light of day — it likely won’t, as least in the current form — would shake up municipal planning in Toronto.
Or there are the growing number of legal initiatives at the federal level following the election of a new government, from dismantling the Harper’s tough-on-crime agenda to climate change.
But instead it struck me as I was scrambling looking for topics, that very little has changed in the way that news is generated since I first sat in the Law Times editor chair in January 1990, when the publication launched.
This January marks the paper’s 26th birthday. At the time, Ian Scott was the attorney general, Charles Dubin was the chief justice, and a typical Bay Street law firm was a few hundred lawyers. The news of the day was regulation of paralegals and the Patti Starr affair — or Pattigate — involving a Queen’s Park Liberal operative who was charged and convicted over political donations dominated headlines. National firms were still a few years off, following the Black v. Law Society of Alberta ruling from the Supreme Court of Canada in 1989.
Fast forward to 2015 and we have the Duffy Affair, paralegal regulation is still relatively in its infancy, and the chief justice is now George Strathy and attorneys’ general of different stripes continue to do their thing. Law firms are bigger than ever and growing.
News, however, is still generated by following rulings, watching legal developments, and talking to lawyers for their insights and gossip, which, fortunately, is still plentiful.
What has changed tremendously, during the past 25 year however, has been the business of both law and journalism.
Law firms get bigger, yet access to justice seems more remote now than in the past. Small- and mid-sized firms struggle with increasing rules and regulations impacting governance. Billable hours are getting squeezed and the public can barely afford lawyer’s services.
Meanwhile, on the journalism side, the business model is essentially broken and publications around the globe are scrambling. Trade publication like ours, I would argue, are in better shape than much of the mass media.
We cater to an audience that needs our information and has the means to pay for it. However, one need only look at the rash of layoffs in the media to see the carnage. Hundreds of journalists in Canada and thousands in the U.S. have been canned from daily papers, television, and radio as companies cope with the shifting advertisement climate. Skinny issues, thin sections are the rule, not the exception. Some publications, such as La Presse, are cashing out of their weekly paper versions on which they founded their operations. Others will follow suit.
The biggest change, then, in the past 25 year for me has been technological, and technology is at the root of much of the change we see sweeping both professions. For example, this blog platform in which I write. It didn’t exist. Today, it is the future, like it or not.
It’s certainly liberating. We can deliver information quicker, faster, and more precisely than we could in the past. For a profession that relies heavily on information flow and knowledge, that is a positive. However, in a profession that is slow to change, there are growing pains, as an older generation of lawyers adapt to new methods of conducting business.
By the same token, digitization of information has created enormous legal opportunities.
Privacy law was embryonic in 1990, and today drives the growth of some practice areas. Technology companies are the darling of Bay and Wall streets, and the investment banks and law firms that serve them. Crowdfunding presents business challenges and opportunities to clients and law firms. Social media law is growing by leaps and bounds. The Internet has also spawned much litigation, as the criminal justice system comes to grip with the darker elements such as online pornography and drug dealing.
In fact, I read an Ontario Court of Appeal case earlier this week, R. v. D’Souza, where police busted a young man who posted an ad for drugs on Craigslist, a popular online marketplace, similar to classified advertisements that used be the bread and butter of many newspapers. Selling drugs through an online classified ad sounds crazy, but this is how youth conduct business in 2015.
Incidently, the appeal court agreed that the youthful offender didn’t deserve a criminal record and set aside the conviction and $750 fine, imposing, instead, a conditional discharge.
As Bob Dylan sang, “Times they are a changin’.” I’m just trying to keep up.
An Ontario Court of Appeal ruling says an employer’s financial circumstances shouldn’t be a factor in deciding what is a reasonable notice period for a wrongfully dismissed employee.
In Michela v. St. Thomas of Villanova Catholic School released yesterday, the appeal court found three teachers were entitled to a 12-month notice period, not a reduced period of six months because of a perceived financial hardship on the part of the school they worked for — in one case for up to 13 years.
Three schoolteachers brought the complaint in response to a Jan. 7 summary judgment in their wrongful dismissal action against the private school.
Motions Judge Thomas R. Ledere had found that teachers Domenica Michela, Sergio Gomes, and Catherine Carnovale were wrongfully dismissed and awarded pay in lieu of 12 months’ notice he found they should have received. However, he decreased the notice period by half for each of the teachers after considering the school’s financial situation.
The teachers argued the damages should not be reduced. In addition to challenging the notice period on appeal, they also argued the motions judge was wrong in his assumption they could secure other jobs within six months of being let go.
The appeal court also sided with the teachers on that matter.
“There was no factual basis for that — it was speculation,” says Wright.
The teachers worked for the school on a series of one-year contracts over a number of years. Gomes was employed for 13 years, Michela for 11, and Carnovale for eight. In May 2013, they each received a letter from the school indicating their contracts would not be renewed for the upcoming year because enrolment was expected to be lower than the previous year.
Michela and Carnovale received a second termination letter in June 2013, and Gomes received an e-mail on June 30 stating the school was not in a position to offer him a position at that time.
The school had argued the teachers were not entitled to notice because they were employed on fixed-term contracts. However, the motion judge found they were employed for indefinite periods and were entitled to reasonable notice.
The teachers raised three issues on appeal.
• First they argued the motion judge erred in relying on the school’s alleged financial difficulties to reduce the notice period.
• Second, they said the judge erred in presuming there would be positions they could secure six months following their termination.
• Third, that the motion judge made a palpable and overriding error of fact in finding that enrolment issues constituted a financial problem permitting a reduction in the notice period to six months.
The motion judge emphasized the “character of the employment” in determining that the 12-month notice period sought by the appellants should be reduced to six.
“It should be self-evident that, by its nature, the School could not provide the security of employment offered by larger, more established and better-funded institutions. The teachers must be taken to have understood the circumstances of their employer. Every year, they had to wait until June before the School could be sure of its requirements for the upcoming year. . . ”
Writing for the panel, Justice Grant Huscroft wrote: “In my view, the motion judge erred in considering an employer’s financial circumstances as part of the ‘character of the employment.’
The ruling went on to say: “There is no evidentiary basis for the motion judge’s presumption concerning the future availability of teaching positions.”
Michael Wright and Stephen Moreau, of Cavalluzzo Shilton McIntyre & Cornish LLP, represented the teachers.
The motion for summary judgment was argued by Moreau who established that although the teachers were working on one-year fixed contracts, given the amount of time the teachers had been employed by the school it was appropriate they be considered indefinite, and therefore entitled to common law notice.
“It was an important hurdle to overcome or we would not have got to the rest of it,” says Wright.
Wright says he sees a lot of employers trying to claim financial hardship when it comes to settling matters as part of the statement of defence. The appeal court made it clear in this case that it’s “not appropriate to do so.”
“It is rare to see a judge accept it as a rationale for reducing a notice period,” he says. “When you’re negotiating at the outset if a lawyer says, ‘My client has significant hardship,’ that’s just a reality you have to deal with as part of the negotiation.”
The Ontario Court of Appeal has upheld a decision to strike a defamation claim against a well-known personal injury lawyer in London, Ont., over statements about a case against a local obstetrician and gynecologist.
The case, Frank v. Legate, dealt with six statements posted on posted on the web site of lawyer Barbara Legate’s firm, Legate & Associates LLP, as well as a seventh statement on the CTV news web site, about civil and disciplinary action against Dr. Cathy Frank.
“If you think you or your baby may have a claim against Dr. Frank, please contact Legate & Associates,” reads one of the statements.
Another statement noted more than 100 former patients of Frank had contacted the firm and pointed out it had, at the time, issued 58 claims in Ontario Superior Court. Two of the statements made reference to “compromised babies” and the fact “children have been born with disabilities that they wouldn’t otherwise have had.”
Besides the defamation claim against Legate, her firm, and two other lawyers who represented the former patients, Frank also sued for malicious prosecution, champerty and maintenance, and intentional interference with economic relations and infliction of mental distress. She claimed $5 million in damages, including $500,000 as a punitive award.
Last August, Superior Court Justice Thomas Carey struck Frank’s claim, finding it didn’t disclose a reasonable cause of action. Frank appealed, arguing, among other things, that a court should only strike a defamation claim on a Rule 21 motion where the statements are clearly not capable of a defamatory meaning. The statements at issue, she argued, don’t fall within the clearest of cases.
But on Friday, the appeal court upheld Carey’s decision. Five of the statements, wrote Justice William Hourigan on behalf of a three-judge panel, “were purely informational and did not comment in any way on the merits of the ongoing litigation.”
The comments, he added, were “neutral in their description of the appellant. References to the numerous women who have come forward are supported by the appellant’s own pleading, which indicates that 58 actions have been commenced against her. No reasonable person, who is taken to understand the difference between allegations and proof of guilt, could interpret these statements in the manner suggested by the appellant (i.e. as suggestive of her being negligent and/or incompetent as a physician).”
In his findings, Hourigan also noted a bigger issue was at stake: “The appellant effectively seeks to prohibit law firms from describing allegations that form the basis of potential or ongoing claims. If this type of statement amounted to defamation, no law firm in the province could ever solicit clients because they could not provide the necessary information for people to determine if they should consult a lawyer about a potential claim. The class action process, for example, would be effectively eviscerated if lawyers were restricted in their communications in the manner urged upon us by the appellant.”
Paul Michell, the litigator at Lax O'Sullivan Scott Lisus LLP who acted for Legate and the other defendants, says he could find no other Canadian cases that involved similar circumstances and allegations.
"The Court of Appeal was concerned that, if accepted, it would severely restrict the ability of firms to communicate with potential clients," he says.
As a result, the appeal court dismissed Frank’s appeal and awarded the defendants $12,500 in costs.
Update 4:30 pm: Comments from Paul Michell added.
A rec hockey player in Ottawa has been granted a new trial after a judge was found to have erroneously applied speculative reasoning to her decision that convicted him of blindsiding another player.
|A rec hockey player in Ottawa has been granted a new trial after the judge was found to have erred in convicted him of blindsiding another player. (Photo: Shutterstock)|
At the centre of the determination of guilt at trial was whether an on-ice collision involving MacIsaac and another player was an unavoidable accident or a deliberate blindside hit.
On Monday, the Ontario Court of Appeal in R. v. MacIsaac allowed the appeal and ordered a new trial, saying MacIsaac did not have a fair trial because the judge “engaged in impermissible speculative reasoning in reaching her verdict.”
On March 15, 2012, MacIsaac’s team the Tiger-Cats was playing in a senior no-contact men’s hockey league in Ottawa against the Pirates. During the last 47 seconds of the game, with the Pirates up by two goals, MacIsaac collided with Pirate Drew Casterton.
Casterton was knocked to the ice on his back and suffered lacerations to his face, a concussion, and the loos of two front teeth. MacIsaac was charged with one count of aggravated assault.
The court heard from 11 witnesses as well as a referee and various members of both teams. The Crown held that MacIsaac deliberately delivered a blindside hit to the left side of Casterton’s head.
The goalie on the Pirate’s team testified he saw MacIsaac leap off the ice, raise his arms, and hit Casterton in his shoulder and head area. He said MacIsaac’s arms hit Casterton’s head and that his facemask may have hit Casterton’s face.
The defence’s position was that the incident was an accidental, unavoidable, face-to-face collision.
At trial, Ontario Court Justice Diane Lahaie said most the witnesses showed “a clear bias depending on which of the two hockey teams he belonged to.”
She found the referee, was the sole “completely neutral” witness and that his evidence was credible and reliable. While his account of MacIsaac’s and Casterton’s positions on the ice — with the pair heading towards the puck behind the net — differed from that of the other witnesses, she accepted the entirety of his evidence aside from his testimony regarding a tripping incident earlier on the same play.
Lahaie also accepted all of Casterton’s testimony. The injuries to the left side of his face were consistent with his testimony about where he was looking and supported the conclusion that this was not a “face to face ‘head on’ collision.”
Lahaie rejected the evidence of one of MacIsaac’s teammates. She was “not prepared to find beyond a reasonable doubt” that the teammate had been on the ice at the time of the incident because it was “not logical” for three Tiger-Cats defencemen to be on the ice with the team down by two points and with so little time left in the game.
“Mr. MacIsaac intended to deliver a blindside hit to Mr. Casterton’s head and knew of the risks associated with head shots. He delivered it anyway as his frustration and desire for revenge took over,” she said.
She rejected MacIsaac’s claims that he left his usual position as a defenceman in an effort to steal the puck from Casterton and score a goal, that Casterton made an unpredictable turn rendering a collision unavoidable, and that MacIsaac did not have sufficient control over his speed to avoid hitting Casterton.
On the issue of consent, Lahaie found the hit amounted to a marked departure from the conduct expected in a no-contact hockey league that “consent to such conduct cannot be given.” As for mens rea, she held that MacIsaac foresaw the risk that his actions would cause serious bodily harm, but nonetheless chose to take that risk.
In a case where the circumstances are not proven or the inferences are not reasonable, or both, the factual inference drawn would be described as “speculative” or “unsupported” and if material to the outcome would not withstand appeal, says Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP.
“The criminal standard was being applied in this case. Perhaps an inference that is more of a stretch might be accepted in a civil context but you couldn’t do it in a criminal context where you might be putting someone in jail,” says Virc.
MacIsaac’s lawyers said Lahaie misapplied the law of consent and failed to consider whether MacIsaac had an honest but mistaken belief in consent.
He thought players in the league consented to any type of bodily contact that was foreseeable in a game, including deliberate blindside checks. The fact defence counsel did not raise the issue did not relieve the trial judge of her obligation to turn her mind to the defence and whether it was applicable in the circumstances.
The appeal court considered whether the trial judge engaged in impermissible speculation and, did she reverse the onus of proof? It also considered whether Lahaie erred in failing to consider the defence of “honest but mistaken belief in consent?”
Writing for the Court of Appeal, Justice C. William Hourigan wrote: “I agree with the submission of the appellant that the trial judge engaged in impermissible speculative reasoning in rejecting the evidence of the defence witnesses. This impaired the appellant’s right to a fair trial. On this basis, I would order a new trial. It is unnecessary, therefore, to consider the other issues raised by the appellant.”
It won’t be just Marc Rosenberg’s brilliance that his former colleague, former chief justice of Ontario Warren Winkler, will remember. It will also be his smile.
|Marc Rosenberg passed away Aug. 27 after a battle with brain cancer.|
“You know, I was interrupting his work, but it never mattered. It was a big smile, and he’d turn around and the conversation would start like it had never ended from the last time you saw him.”
Winkler is one of many members of the Canadian bar and bench mourning this week. Rosenberg, a former judge of the Court of Appeal for Ontario and one of the country’s foremost experts in criminal law, died on Thursday after a battle with brain cancer. To many of those who worked with him, Rosenberg was not just a colleague but a dear friend.
“He was just one of those people who had an impact on many, many people in different areas, and he wasn’t one dimensional by any stretch of the imagination,” says Winkler. “People he came in contact with, he made a mark on them. He just had that way about him, because he was a person with a huge amount of depth but he also wasn’t reclusive — he was a warm person.”
Born in 1950 to Ethel and Morris Rosenberg, he was called to the bar in 1976 after graduating from Osgoode Hall Law School. He practised criminal law at Greenspan Rosenberg and Buhr for nearly two decades until 1995, then served as a Court of Appeal judge for almost two decades more, retiring earlier this year. He also served as assistant attorney general for the ministry’s Public Law and Policy and Civil Law divisions.
Rosenberg’s accomplishments were many. He was a director of the Criminal Lawyers’ Association from 1987 to 1991, and was a non-bencher member of the Law Society of Upper Canada’s legal education committee. He served as editor of Martin’s Annual Criminal Code and wrote many articles on criminal law and the Canadian Charter of Rights and Freedoms.
"Justice Rosenberg had a decades-long association with Canada Law Book, and later with Carswell, as author/contributor to numerous prominent publications, including the highly-regarded Martin’s Annual Criminal Code and Martin’s Ontario Criminal Practice. It was both a pleasure and a privilege to work with him. He will be missed," said Rachel Francis, the vice president, legal and regulatory, at Carswell.
Rosenberg served as consultant on a number of influential commissions, including the Law Reform Commission on Electronic Surveillance and on the Powers of the Attorney General, the Donald Marshall Inquiry, and the Government of Ontario’s Justice Review Project, according to a biographical note on the Court of Appeal web site. He also taught at Osgoode, and around the world as a judicial associate with the National Judicial Institute.
Winkler’s friendship with Rosenberg began, he says, soon after he himself became a judge.
“He was one of what I call my ‘have-coffee-with people,’ because I would go in in the morning early, he would go in in the morning early, and we would either go out for a coffee or we’d sit in his office and have a coffee and just talk about general things,” he says.
Rosenberg’s many achievements, says Winkler, stemmed not only from his widely recognized brilliance but also his work ethic.
“He was a tireless worker, and a perfectionist,” says Winkler. “So everything that he did reflected that.
“From my point of view as the chief, if I needed anything done at all by way of extra things, for him to help with, he was always a volunteer. . . I could go to him and he’d take on any sort of task or job no matter how busy he was, and you didn’t have to worry about it — he’d get it done.”
Rosenberg was also a passionate teacher.
“Whenever he wasn’t sitting and doing his judicial work, every other spare moment he spent teaching both across Canada and internationally to both lawyers and other judges. And he did that through the judicial council or through anybody who asked him, frankly.
“I always used to kid him about his air miles . . . because he was always on an airplane going somewhere, to the Orient or Europe or the U.S. to teach, because he was so good at it and so popular.
“He was in great demand, and he would be all over the world, appearing at conferences and teaching other judges and they loved him. Everybody loved him because he was a very good teacher, he was very clear and he simplified everything down so that everybody could understand it,” Winkler says.
Rosenberg was predeceased by his wife Martha, whose death a few years ago dealt him “a huge blow,” says Winkler. He is survived, according to the Court of Appeal web site, by his partner Priscilla Platt and two children, Debra and Daniel.
“I call him a dear colleague but also a dear personal friend,” Winkler says. “And I say I’m going to miss him immensely.”
Toronto criminal lawyer Brian Greenspan, brother of Rosenberg’s late partner in private practice, says he was very well described in the funeral notice written by his family.
“They said he was a man of great integrity, intelligence, and judgement, and of unfailing humility and grace,” says Greenspan. “Knowing Marc as I did for over 40 years, I think he would have smiled and told them ‘well done,’ because I think that probably most aptly describes who he was, the type of person he was, and the type of lawyer and judge he was.
“It’s a great loss to the community and a great loss to the law.”
The notice is viewable on the web site of Benjamin’s Park Memorial Chapel, site of Rosenberg’s funeral this afternoon.
Anthony Moustacalis, current president of the Criminal Lawyers’ Association, knew Rosenberg when we worked in private practice alongside Eddie Greenspan.
“He was at the time, I would say, the leading criminal appeal lawyer in Canada,” Moustacalis says.
As a legal scholar, Moustacalis says, Rosenberg “had the uncanny ability to synthesize contradictory legal cases and explain how they all fit together, which was always quite remarkable.”
As a judge, he recalls, Rosenberg “was always someone who on and off the bench was very soft-spoken, but a very incisive thinking person,” whose decisions were referred to by “all other courts in Canada, at all levels.”
Among his most influential decisions, Moustacalis says, was in R. v. Priest, 1996, in which Rosenberg argued against custody for a young first-time offender.
In a prepared statement, Ontario Attorney General Madeleine Meilleur said: “I was greatly saddened today to learn of the death of the Honourable Marc Rosenberg, a respected and influential figure in the Canadian legal community. . . . Today my thoughts and prayers are with Justice Rosenberg’s family, many colleagues and friends. I join with them in mourning his loss. He will be missed.”
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