Both sides in a class action case involving VIA Rail have been sent back to the drawing board with a litigation strategy template from the Ontario Superior Court.
|Jay Strosberg admits there isn’t much case law guidance on the individual issues phase of class actions.|
Calling the matter “a test centre for undeveloped but very important aspects of class action procedure” under the Class Proceedings Act, Justice Paul Perell ruled on an individual issues motion Nov. 16 in Lundy v. VIA Rail.
He gave both parties 30 days to consider and adapt his litigation strategy and if an agreement cannot be made in that time, he ordered a case conference where he will settle the plans.
“One might think that the matter of designing the individual issues phase of a class action is no big deal and that designing the individual issues phase pales in significance to the matters of certification, the common issues trial, and the settlement approval stages of a class action,” Perell wrote.
“However, one would be wrong in undervaluing the importance of the litigation plan for the final stage of a class action. The design of the individual issues phase has a substantial impact on achieving the goals of the class action regime of access to justice, behaviour modification, and judicial economy.”
In the issue before him, the parties could not agree about the litigation plan for the individual issues phase of the action and both presented strategies to the court. The 45 class members were all passengers on a VIA Rail train in early 2012 when it derailed near Burlington, Ont.
In mid-2014, VIA served offers to settle to each individual class member, ranging from $8,000 to $40,000 and the promise VIA would pay members’ legal fees and disbursements in an amount equal to 15 per cent of the settlement amount paid to the class member.
At that time, Perell ordered the parties to prepare individual issues litigation plans, an assessment of costs to date, and judgment on common issues of the certification order. He ruled that once the litigation plans were settled, VIA could then deliver the individual offers to settle. But the sides could not agree on those plans and Perell ordered they try one more time.
Jay Strosberg, partner at Sutts Strosberg LLP, says the individual issues stage of a class action is not common as cases generally settle beforehand. He says when that procedure isn’t agreed upon, there isn’t much guidance on how individual issues should be resolved.
“In one sense it is reassuring that there isn’t a lot of case law on this point, because it means that counsel have generally been able to come up with a plan they both agree with. In another sense, it would be helpful if there were more input from the judiciary about what types of procedures they feel are manageable for handling individual damages claims,” he says.
Strosberg says procedure should allow for class members to submit their claims without huge hurdles, while allowing the defence to also lead evidence and make its case.
“It is a tricky balancing act and one that requires a good deal of practical foresight,” says Strosberg.
“Perell took this opportunity to propose a plan of his own in which he underscored the importance of access to justice and judicial economy, which really should be the focus when coming up with a plan.”
Margaret Waddell, of Paliare Roland Rosenberg Rothstein LLP, says the rules under the CPA are purposefully broad to ensure an efficient process."
“If the parties can’t reach an agreement, then the court has tremendous discretion and latitude in creating a bespoke process for each case. Once a case reaches this stage of the proceeding, the efficiencies of the CPA really come home to roost,” she says.
“The parties can agree on their own efficient process, or if they can’t agree, then the court has the power to craft a procedure that works for the litigants in a way that best meets the objectives of access to justice, efficiency and proportionality for all the remaining parties.”
Update Nov. 24: Quote from Margaret Waddell corrected.
In what he called a “bizarre and lamentable” motion, an Ontario Superior Court judge has taken the “extra-extra ordinary” measure of awarding $70,000 in advance costs to an aboriginal woman seeking to bring a class action on behalf of the former students of Fort William Sanatorium School.
There’s evidence that aboriginal children who needed hospitalization for tuberculosis were sent to a sanatorium and schooled Fort William Sanatorium School, said Justice Paul Perell, but the school is not among the recognized residential schools under the Indian Residential Schools Settlement Agreement, a contract signed in 2006.
Henry is seeking to have the Northwestern Ontario school listed as a residential school under the agreement, but Canada argues the sanatorium, while residential, was a health facility and therefore the responsibility of a board of directors first, and later, the Province of Ontario.
Lawyers and non-profits refuse to take up cases like this one because of there is no established process to obtain remedies for students who went to schools like Fort William Sanatorium School. Getting those institutions recognized as residential schools is onerous and costly.
“It is a lamentable motion, because, for a variety of reasons, ‘nobody’ was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the [request for direction]. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined,” Perell wrote.
“In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.”
Henry — who is 82-years-old, disabled, unemployed, and impoverished — could not by herself bring the request for direction under IRSSA. Edward Sadowski, a researcher who has helped up to 1,000 aboriginal claimants with respect to claims under the IRSSA, filed the request on her behalf but failed to obtain legal assistance to advance it.
The motion was “bizarre,” according to the judge, because the very question of who was bringing it was in dispute. Canada argued Sadowski, who is not aboriginal and did not attend a residential school, was the person bringing the application and seeking advance costs.
But Perell disagreed. “Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me,” he wrote.
“In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice,” Perell added.
He ordered the federal government to pay Henry $70,000 in advance costs as well as the cost of the motion.
Christa Big-Canoe, legal director at Aboriginal Legal Services of Toronto, says Perell’s ruling is “a significant win.”
“It speaks to the need to recognize that things don’t always fit into a box laid out in a settlement agreement,” says Big-Canoe. “It speaks to recognizing there are more survivors of this type of colonial legacy and it will provide an opportunity for those survivors to at least have their day in court.”
Big-Canoe says aboriginal students were, at times, sent to sanatoriums for being unco-operative, deemed “insane,” or otherwise sick. In some cases, the residential schools they attended before going to a sanatorium would take their names off the attendance roll, leaving them with no record of having attended a recognized residential school.
In some cases, the students only ever attended sanatorium schools, and “atrocities” have taken place in those schools as well.
“It becomes a Catch 22; they’re not being recognized,” she says.
Big-Canoe says while unfortunate, it’s understandable that both private practitioners and non-profits like her organization are reluctant to take up cases like Henry’s. When a person is seeking to have a school recognized officially as an Indian residential school, there are huge disbursement costs as well as dozens of hours of work with no guarantee of success, she says.
From a non-profit perspective, “we would be putting out all that money and time and the reality is if the process isn’t going to accept the claimant’s application, it’s money that could have been used for a person who would fit within the claim parameters,” adds Big-Canoe.
According to Perell, the case is an example of a “pandemic” issue in class proceedings as well.
“In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases,” he wrote. “The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.
“I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems,” Perell continued.
“The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.”
Masturbating in a public space doesn’t necessarily constitute a wilful indecent act if the person doing it never intended for others to notice, an Ontario Superior Court Judge has found.
On Monday, Justice Kenneth Campbell set aside the conviction of a Toronto man found guilty of wilfully committing an indecent act because a lower court judge had assumed that just because others witnessed the act it meant the man had intended for people to see him or to offend them.
Counsel for the appellant argued his client, Paolo Novello, had tried to cover himself when undercover police officers spotted him masturbating in public places near schools, parks, and playgrounds.
“First, there is no legal presumption that, where an accused is engaged in some indecent act and is, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person,” wrote Campbell, who noted a person might not know someone else is around.
“For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.”
Criminal lawyer Daniel Brown says cases of indecent exposure don’t arise often and that when they do, it seems like there has been confusion over what the jurisprudence says about the presumption of wilfulness.
“This decision by Justice Campbell clarifies any confusion that might have otherwise existed,” says Brown.
“If you are being seen, maybe a judge can conclude that was your intention, but it isn’t something that should necessarily flow from being seen,” he adds.
In R. v. Novello, the trial judge concluded the appellant “positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state.”
Campbell, however, ordered a new trial in the case after setting aside Novello’s conviction.
“Instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another,” he wrote.
Plaintiffs’ lawyers pursuing a class action for a global price-fixing conspiracy will have to get formal opt-in from class members abroad, if yesterday’s jurisdictional decision stands in Airia Brands v. Air Canada.
|Charles Wright says he disagrees with the court’s analysis on jurisdiction.|
Despite a possibly “real and substantial” connection to Canada — the test established in the Supreme Court of Canada’s Club Resorts Ltd. v. Van Breda decision — defence counsel successfully argued that Ontario’s courts had no jurisdiction to include in the proceeding foreign class members who had not specifically opted in, defined as “absent foreign claimants.”
Armed with reams of expert opinions, lawyers for the airlines convinced Leitch that foreign courts in many of the 100-plus countries from which plaintiff class members derived would not respect the Van Breda test giving Canadian courts jurisdiction.
As a result, nothing would prevent a class member in one of those other countries from re-litigating the matter and subjecting the defendants to double jeopardy.
As the decision states: “I am satisfied that jurisdiction over class members can only be established if they are present in Ontario or have consented in some way to the jurisdiction of this court. I therefore, find that this court does not have jurisdiction simpliciter over absent foreign claimants.”
It’s a decision that stands in sharp contrast to Van Breda, where Canadian courts were able to claim jurisdiction, for a case involving injuries on a Cuban resort, based on a test establishing “real and substantial connection” to Canada.
Charles Wright, the Siskinds LLP lawyer who launched the class action in Canada, says he disagrees with the court’s analysis on jurisdiction, which finds that the plaintiffs connection to Canada is not strong enough to account for the possibility of double recovery.
Wright says that the decision essentially shuts the door to the most likely avenue for justice for foreign claimants on the off chance they might pursue an alternative, and highly unlikely, avenue for justice.
“We believe our courts in Canada follow the rules of law and provide justice,” he says, “and if other courts abroad, some other day, choose to find that that’s not so and won’t respect the judgment, that’s really a decision for them to make and that doesn’t impact on whether this court properly takes jurisdiction.”
Wright says the decision on jurisdiction will most likely be appealed. Even if it’s upheld, though, it will not prevent plaintiffs’ lawyers from sending out notices to potential foreign claimants to get formal opt-in from them.
Jurisdictional issues aside, Wright suggests the defendants’ real strategy — one that has proven successful so far — is to drag the case on and make it more difficult for class members to participate, in the hopes of reducing liability for their clients.
“Our argument was that this was a fairly clear effort to avoid liability to these people. It wasn’t really about the potential for double jeopardy or that they shouldn’t have to face a multiplicity of lawsuits. It was about the desire to not have to compensate some people at all.
“The defendants hope is that maybe people won’t see or understand the notice and won’t respond to it, and therefore won’t opt in,” says Wright. “So the real hope is — which is what we argued and what we will argue on appeal — is that they will avoid any liability to those people.”
Ultimately, however, Wright says the court’s decision on jurisdiction may backfire on the defendants:.
“If, in fact, the result of this decision is a notice that goes out that causes people to see them in 20 different jurisdictions, and they have to obtain counsel in all of those places and defend themselves, it’s not actually a good result for them.”
When bringing a motion to set aside default judgment defendants better have good evidence and respond quickly, according to a recent Ontario Superior Court decision.
In Marina Bay Sands Pte, Ltd. v. Jian Tu aka Tu Jian, Justice Sean Dunphy wrote on Aug. 7:
The Superior Court is not a sandbox playground where ‘do-overs’ can be expected on demand. The stakes are high and this is no time to keep powder dry. If there is any reason the judgment ought not to stand, any and all reasons must be diligently and properly placed before the court.”
In the Marina Bay case, the defendant, Jian Tu, created a claim to set aside default judgment on what Dunphy called “two slender straws” — a procedural argument based on the exclusive jurisdiction clause in the underlying contract in favour of Singapore laws and courts, and a “bald, second-hand assertion” of failure to receive the statement of claim by means of the substituted service authorized by an order of the court.
Tu brought a motion to set aside the default judgment dated June 28, 2014, and to strike the statement of claim or for leave to file a statement of defence.
Marina Bay, a Singapore hotel, issued the statement of claim on Feb. 18, 2014, for amounts owing under a credit agreement between it and the defendant. The amount claimed was the Canadian dollar equivalent of SGD $9,940,683, plus prejudgment interest arising from advances made in February 2013 that the defendant had failed to repay.
The debts arose from markers given to support gambling at the plaintiff’s casino. A credit history obtained by the plaintiff showed Marina Bay was not the only casino the defendant has obtained credit from — there was a list of other casinos in Ontario and abroad.
Marina Bay had difficulty serving the statement of claim. Three unsuccessful attempts at service were made between March 6 and March 15, 2014, at an address in Markham, Ont. The process server received no reply.
Several other attempts were made to the same address.
On June 28, 2014, default judgment was obtained in the amount of the Canadian-dollar equivalent of SGD $11,127,028.62 plus $2,000 for costs, both amounts bearing post-judgment interest at the rates of 13 per cent and three per cent respectively.
Marina Bay proceeded to register writs of seizure and sale on July 21, 2014, and made a number of attempts to serve the judgment upon Tu via regular and registered mail and courier on several dates from July 23, 2014 to Jan. 2015.
Tu claimed he did not reside at the Markham property during the time the statement of claim was said to be delivered.
The case raised the following issues to be determined:
a) Is the existence of an “exclusive jurisdiction” clause in the contract underlying the default judgment sufficient grounds to warrant setting aside a default judgment?
b.) Does a bare hearsay allegation that the defendant failed in fact to receive a copy of the statement of claim warrant the exercise of the court’s discretion to set aside default judgment under Rule 19.08(1) of the Rules of Civil Procedure?
Dunphy said he did not accept “the evidence that the defendant in fact had no notice of the claim.”
He noted that Marina Bay has been unpaid for almost three years on its liquidated claim, and “had to engage lawyers in Ontario to track down the defendant and has now found property that he owns and has secured a judgment.”
Bald, hearsay statements to that effect which have been made without explanation of the circumstances carry little weight in these circumstances. . . . Secondly, there is a great distinction to be drawn in my mind between an irregularly obtained default judgment and a properly obtained judgment following substituted service in accordance with a validly-obtained order of the court. In the latter case, the judgment is regular. While the interests of justice may well favour setting such a judgment aside if credible evidence is led to establish that the alternative to personal service employed was actually ineffective, such is not automatically the case. Even if I accepted the defendant’s assertion (which I do not), the defendant would have still to explain his delay in responding to the judgment and to provide the court with some indication that he has a bona fide defence on the merits."
Dunphy dismissed the motion with costs.
A former senior Conservative Senate staffer who reposted a defamatory statement about Ottawa human rights lawyer Richard Warman has been ordered to pay $10,000 in damages.
In a decision issued by the Ontario Superior Court July 30, Justice David Corbett ordered Michael Veck to pay Warman the money after finding Veck had no legal defence for posting an article about him that was “obviously defamatory.”
However, on July 31, a bankruptcy trustee for Veck wrote to Warman’s lawyer and the court providing a notice of stay of proceedings, indicating all legal actions were stayed.
“I’ve asked the trustee to immediately withdraw the notice of stay of proceedings and am reviewing the information provided to determine my next steps,” Warman told Legal Feeds via e-mail Tuesday.
Warman added he intends to pursue the $10,000 libel judgment and costs “to the fullest extent possible.”
The case arises in the context of a debate over the relationship between laws against hate speech and the principles of freedom of speech. Warman is an advocate against far-right and neo-Nazi hate speech.
In March 2009, Veck republished an article first published by the National Post and written by former columnist Jonathan Kay about Warman that was untrue. Warman says the article was posted to a Stanford University web site forum catering to leaders in politics, academia, the military, and journalism.
The original article by the National Post was retracted after Warman issued a libel notice.
Both Kay and the newspaper subsequently settled a libel action against them. Veck republished the article more than a year after the newspaper removed it from its web site.
In his decision, Corbett wrote:
“I find the impugned article posted by Mr. Veck is defamatory of Mr. Warman. I find that Mr. Veck has no legal defence for publishing this defamatory article. . . .”
Corbett went on to say a message Veck posted as a retraction and apology on the same web site “did not cure the damage caused by the defamatory article and should not serve to reduce damages awarded to Mr. Warman.”
Veck’s “apology” posted to the web site was as follows:
“I previously published material here that attacked the personal and professional reputations of Mr. Richard Warman. Mr. Richard Warman states that these allegations were false, and so I wish to retract them and apologize.”
Mr. Veck is not assisted in these defences by the fact that a substantial portion of his article was a repetition of Mr. Kay’s article in the National Post. A defendant cannot escape liability by publishing statements originally published by someone else. Put prosaically by Lord Denning fifty years ago:
“Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided in its circulation. He must answer for it just as if he had started it himself.”
In an e-mail exchange with Legal Feeds Veck confirmed he no longer works in Canadian politics, but declined to comment further on the matter.
|Anne Jacob is appointed to the Superior Court of Quebec.|
In several instances the appointments are said to be filling new positions created by Bill C-31.
Guy R. Smith, a sole practitioner in Ottawa, was appointed a judge of the Tax Court of Canada to replace Justice Joe E. Hershfield, who elected to become a supernumerary judge as of June 1, 2015.
Smith had been a sole practitioner since 2014. Previously, he had been the judicial affairs adviser for the federal Minister of Justice and Attorney General of Canada from March 2009 to July 2014. He practised administrative law, constitutional law and litigation with Perley-Robertson Hill & McDougall LLP from 1997 to 2005 and as a sole practitioner from 1991 to 1997. He was called to the Ontario bar in 1988.
Alberta Provincial Court Judge Robin Camp has been appointed to the Federal Court to replace Justice Yves de Montigny, who has been elevated to the Federal Court of Appeal.
Camp received his law degree in South Africa and successfully completed challenge exams to re-qualify to practise in Canada in 1998. He was appointed a judge of the Provincial Court, Criminal Division, in 2012. Prior to his appointment, he had been a lawyer at JSS Barristers from 2004 and a managing partner from 2008 to 2012. His main area of practice was commercial litigation. He was called to the Alberta bar in 1999.
E. Susan Elliott, a lawyer with Good Elliott Hawkins LLP in Kingston, Ont. has also been appointed to the Federal Court. She replaces Justice Mary.J.L. Gleason, who has been elevated to the Federal Court of Appeal.
Elliott was called to the Ontario bar in 1981. She had been at Good Elliott Hawkins (formerly Good & Elliott) since 1981, and during that time she had been general counsel, legal line of business, Teranet Inc. She also served as treasurer of the Law Society of Upper Canada; as well as hearing commissioner, part time, for the Rent Review Commissioner of Ontario and a smalls claims court judge since 2009.
Sylvie Roussel, a lawyer with the Security Intelligence Review Agency in Ottawa, is appointed to the Federal Court as well, replacing Justice Marie-Josée Bédard, who was appointed to the Superior Court of Quebec.
Roussel was called to the Ontario bar in 1987. She had been senior general counsel with the Security Intelligence Review Agency since 2007. Previously, she had practised with the firm Noël & Associés, s.e.n.c.. Her main areas of practice were public/constitutional law, criminal law, Charter Law and human rights law.
Fredricton’s Ann Marie McDonald, a lawyer with McInnes Cooper LLP, is also headed to the Federal Court. She replaces Justice R.T. Hughes, who elected to become a supernumerary judge, effective Sept. 1, 2015.
McDonald was called to the bar of New Brunswick in 1994. She became an associate with McInnes Cooper in 2000 and a partner in 2002, practising primarily in the areas of commercial litigation, employment law, administrative law and general litigation.
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|The Crown’s comments ‘ were made on purpose in order to paint a very negative opinion of the accused,’ says Elliott Willschick.|
In this case, Haiden Suarez-Noa had conceded he had stabbed his wife with a knife, according to Reid. But in open court and with the jury absent, defence counsel suggested he expected to raise a defence of provocation, Reid noted. Following the opening address and reading of an agreed statement of facts, however, the defence brought an application for a mistrial.
In the opening address, the Crown made references to personality traits the could disguise “deep uncontrolled rage” and went on to note that most people are able to push back against their instincts given “the norms of our society.” She then discussed an older movie, Impulse, in which people return to their “most feral instincts” due to a water supply issue in a small town.
“That ladies and gentlemen, is what this trial is about: the difference between reasonable human beings and animals,” prosecutor Kimberly Rogers told the jury.
“That characterization of the accused was both highly improper and was of such a nature that it could not be erased from the minds of the jurors even with a significant correcting instruction,” wrote Reid.
“The fairness of the trial process was irremediably compromised.”
Toronto criminal defence lawyer Elliott Willschick agrees.
“The Crown’s comments were beyond inflammatory and prejudiced the trial considerably. There is no way the jury could forget such inflammatory comments,” he says.
“Normally, the Crown makes their opening address to the jury so that they can outline the case and explain how the process works,” he adds, suggesting the situation in Suarez-Noa wasn’t necessarily an isolated incident.
“Inappropriate comments do arise and the courts accord leniency to those who make them,” says Willschick, distinguishing this case from another one in which the court found a reference to “Mr. Guilty” to be inadvertent.
“The comments in R v. Suarez-Noa were made on purpose in order to paint a very negative opinion of the accused,” says Willschick.
Reid’s other big concern was Rogers’ reference to the fact Suarez-Noa would raise the defence of provocation and her instruction to the jurors that they must consider whether the facts “accord with the accused’s version of events or belie it.”
“It may be that the accused will rely on the defence of provocation,” wrote Reid.
“It also may be that the accused will testify or call evidence in his defence. However, those are decisions for the accused to make in due course. It is highly inappropriate for Crown counsel to advise the jury of the defence position without a prior agreement, and particularly implying to the jury that the accused will testify.”
In the end, Reid found “the combination of rhetorical over-zealousness, personal opinion, argument, negation of the accused’s right to silence and implied reversal of the onus of proof combine to make a mistrial the only available option. The fairness of the trial was irreparably damaged beyond the possibility of redemption through a correcting instruction.”
Charn Gill, one of the defence counsel for Suarez-Noa, says the Crown’s actions left him “dumbfounded.”
“I’ve never seen a Crown go so far astray from what they’re supposed to do in an opening statement,” says Gill, who notes he quickly moved forward with the mistrial application after hearing the opening address.
Gill calls the situation a “colossal waste of resources” given the one month set aside for the trial. The goal now is to try to find time in November, he notes.
“I’m surprised the Crown attorney’s office is allowing the Crown to continue,” says Gill, suggesting that while inappropriate comments sometimes arise in opening statements, the accumulation of circumstances in Suarez-Noa was rare. “I think it was a rare thing that you’d make that many mistakes,” he says.
A Vancouver family lawyer with Jenkins Marzban Logan LLP, Grace Choi has been appointed a judge of the Supreme Court of British Columbia, Family Division, to replace Justice R. Crawford, who elected supernumerary status in August of 2014.
The Dalhousie graduate was admitted to the B.C. bar in 1993 and in Ontario in 1996. She became an accredited family law mediator in 2013 and was appointed Queen’s Counsel in 2014.
Federal Court Justice Denis Gascon, who also sat on the Competition Tribunal, has been named chairman of the Competition Tribunal to replace Justice D.J. Rennie, who in turn has been appointed to the Federal Court of Appeal. Gascon was appointed to the Federal Court on Feb, 26, 2015. Prior to that, he joined Ogilvy Renault (now Norton Rose Fulbright Canada) in 1989, where he became a partner in 1997.
Recently retired Canadian Forces legal adviser Patrick K. Gleeson, has been appointed to the Federal Court to fill a new position created by Bill C-11.
After being admitted to the bar of New Brunswick in 1994, he joined the Office of the Assistant Judge Advocate General in Halifax as a legal adviser and worked in different directorates until 2000. He became the JAG’s Director of Legal Services, where from 2005 he served as the senior legal adviser.
Cilian Sheahan, of Poole Althouse in Corner Brook, N.L., has been appointed as a judge of the Newfoundland and Labrador’s Supreme Court, Trial and Family Division to replace Justice R.A. Fowler who will move to supernumerary status this month.
He was called to the N.L. in 2000 and appointed Queen’s Counsel in 2013. Sheahan’s areas of practice were corporate and commercial law, municipal, labour and employment law and corporate estate planning. In 2004, he joined the Canadian Forces as a legal officer.
Following the resignation of Justice V.A. Schuler, Justice Andrew M. Mahar of the Nunavut Court of Justice in Iqaluit, will become a judge of the Supreme Court of the Northwest Territories.
Mahar is called to the bars in Ontario, Nunavut, and the Northwest Territories. Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic. He has mostly practised as a sole practitioner but was also Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic in Cambridge Bay.
Sylvia Corthorn, a lawyer with Kelly Santini LLP/SRL in Ottawa, will replace Justice L.D. Ratushny of the Ontario Superior Court of Justice. Ratushny has been elected to supernumerary status, which had come in effect in June last year.
Corthorn was called to the bar in 1984 and has mainly practised in the areas of personal injury law, medical and dental malpractice, insurance defence litigation, and commercial and estate litigation.
Superior Court of Quebec Justice Charles Ouellet moves from the districts of Saint-François and Bedford, with residence in Cowansville, to the districts of Saint-François and Bedford, with residence in Sherbrooke. Ouellet will replace Justice Y. Tardif who has elected supernumerary status effective June 1. He was originally appointed to the Superior Court of Quebec in 2011.
Also in Quebec, Serge Gaudet, a lawyer with Langlois Kronström Desjardins in Montréal will replace Justice J. Lanctôt as puisne judge of the Superior Court of Quebec. Justice Lanctot has elected supernumerary status.
Gaudet was called to the bar in 1987. His main areas of practice were civil and commercial litigation.
A lawyer with Bouchard Page Tremblay in Quebec, Simon Hebert is appointed to Superior Court of Quebec to replace a by Justice M. Fortin, who has resigned.
Mostly a class action counsel, Heber was called to the bar in 1989. He has also been an officer with the Canadian Armed Forces since 1983
Chantal Tremblay, who is a lawyer with McCarthy Tétrault LLP in Montreal, also joins the Superior Court, taking over for Justice A. Denis.
Called to the bar in 1995, Tremblay is a former Quebec managing partner at McCarthys. Her main areas of practice were commercial litigation, class actions, professional liability, insurance law, environmental law, medical liability and disciplinary law.
Finally, Alexandre Bouchar a lawyer with the Director of Criminal and Penal Prosecutions has also been appointed to the Superior Court. He will be replacing Justice C. Champagne, who elected to supernumerary status.
Bouchar was called to the bar in 1996. He joined the Director of Criminal and Penal Prosecutions in 2010, and was previously a sole practitioner from 1995 to 2010.
Saskatchewan provincial court Judge Jeffery D. Kalmakoff in Regina has elevated to the court of Queen’s Bench of Saskatchewan. Justice D.P Ball of Regina has elected supernumerary status on May 9, 2014.
Prior to his appointment Saskatchewan Court of Justice in 2009, Kalmakoff was a Crown prosecutor with the Public Prosecutions Division of the Saskatchewan Ministry and Attorney General in Regina between 1996 and 2009. He was called to the bar in 1994.
Don R. Sommerfeldt, a counsel with Dentons Canada LLP in Edmonton, is the newest appointed judge of the Tax Court of Canada to replace a resignation by Justice G. Sheridan.
He was called in Alberta in 1978 and to the bar of New York in 2004. Sommerfeldt has been with Dentons Canada LLP (formerly Fraser Milner Casgrain LLP) since 2000 practising taxation, estate planning, and pensions.
A lawyer with McInnes Cooper in Halifax, Henry A. Visser, is also appointed to the Tax Court to replace Justice D. Cambell who elected supernumerary status as of this year, June 19., will take over.
Visser mainly practised tax law, corporate law, commercial law, labour law, and employment law. He was admitted to the bar of Nova Scotia in 1995 and to P.E.I. in 1998
|Police cannot base an informed waiver of the right to counsel on the tone of a response, says the court. (Photo: Shutterstock)|
The issue before the court was whether Ouimet’s Charter rights were violated when he was informed of his right to a lawyer and he responded “yeah yeah” in what police described as a dismissive tone.
“That is to say, that yeah, yeah, meant no,” wrote Abrams in his May 15 ruling, in outlining the position of police and the Crown.
Ouimet was stopped by Cornwall police on suspicion of being impaired. After his response to police, the officer made no further attempt to see if Ouimet wanted to contact a lawyer. Ouimet was charged after he refused to provide a breath sample.
Provincial Court Justice Bruce McPhee convicted Ouimet and accepted the testimony of police as to what “yeah yeah” meant.
In the appeal of that decision, Abrams agreed with the arguments of Ouimet’s lawyer James Foord, that an informed waiver of the right to counsel cannot be based on the tone of an affirmative response.
“The appellant may have actually been flippant, cavalier, dismissive and even annoying in his dealings with the officer, but tone of speech and attitude cannot, in the absence of further inquiry, be used to lower the high standard required for a clear and unequivocal waiver of an accused’s right to counsel,” wrote Abrams.
The Superior Court decision is a reminder of a straightforward obligation for police, says Foord, a partner at Foord Davies LLP in Ottawa.
“We are talking about a fundamental right, when someone is at a power disadvantage,” says Foord. “It would not take very much effort for an officer to inquire further, if there is any ambiguity” to a question about whether someone is waiving a right to counsel.
“Yeah, yeah” can have more than one meaning, Foord agrees. But that is why police have to ask follow up questions, he says.
Abrams, who was an RCMP officer for 18 years before entering the practice of law, rejected the Crown’s submission that the evidence should be admitted because the officer was acting in good faith.
“Though perhaps not a flagrant breach, this misconduct amounts to a serious infringement of the appellant’s Charter rights. The officer should have known his Charter obligations during this routine impaired driving investigation. The conduct here is in the category of behavior from which the court should be concerned to disassociate itself,” Abrams wrote.
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