Legal Feeds Blog
This week, the Supreme Court of Canada will hear six appeals. The first three are criminal cases relating to search and seizure and reasonable grounds for arrest. The court is also hearing a case involving solicitor-client privilege in Quebec, as well as a curious tax case where the authority increased its own assessment after a taxpayer appeal.
March 21 – Ontario – Wu. v. R.
Charter of Rights: The appellant was charged with drug-related criminal activity. Charges were dropped after the trial judge found the detective investigating the case had no objectively reasonable grounds to request a search warrant. The appeal court set aside the decision and ordered a new trial. The SCC will determine, in an oral hearing, whether there were reasonable grounds to arrest and charge the appellant.
Read the Ontario Court of Appeal decision
Related news story:
Botched case highlights need for JPs to have legal training, Toronto Star
March 21 – Alberta – R. v. Villaroman
Criminal law: The respondent brought his computer into a repair shop, where a technician stumbled upon child pornography hidden in a music folder. The technician called the police, who got a search warrant to inspect the machine. The respondent argued at trial that his right to be protected from unreasonable search and seizure had been violated. The trial judge rejected that argument, but the appeal court quashed the conviction. The SCC will determine whether Charter protections are applicable in such circumstances.
Read the Alberta Court of Appeal decision
Related blog post:
Mere existence of illegal content on a portable device is insufficient to ground a conviction for possession, Canadian IT Law Association
Criminal law: The appellants were involved with the Hells Angels. They provided protection for a cocaine distribution business. At trial, the appellants successfully argued that their role did not involve the trafficking of cocaine. The appeal court substituted the acquittal for convictions in both cases. The SCC will review whether the appeal court erred in conflating the appellants’ activities with drug trafficking.
Read the Alberta appeal court decision
March 23 – Alberta – Edmonton v. Capilano Shopping Centres
Administrative law: When the Capilano Shopping Centre was assessed, for property tax purposes, at $31.3 million, it appealed to the Assessment Review Board for the City of Edmonton. Beyond merely rejecting the appeal, the review board’s assessor used vague language in the Municipal Government Act to increase the assessment to $40.8 million. On appeal, the court found the review board could only consider the appeal before it, and could not “cross-appeal” its own assessment. The SCC will provide interpretive clarity to the act.
Read the Alberta appeal court decision
Related blog post:
The return of context in the standard of review analysis, University of Montreal
March 24 – Quebec – Chambre de l’assurance de dommages v. Aviva Insurance
Legislation: The appellant is a regulator in Quebec that was pursuing an ethics inquiry against a claims adjuster working for the respondent. As part of its investigation, the regulator demanded certain documents that were withheld by the claims adjuster due to solicitor-client privilege. On appeal, the court rejected the regulator’s assertion that solicitor-client privilege, which serves private interests, cannot be used to stifle an inquiry with public interests at stake. The SCC will determine whether the relevant provincial legislation affords solicitor-client privilege.
Read the Quebec Court of Appeal decision
Related blog post:
Litigation privilege given same protection as solicitor-client privilege, Law in Quebec
Quebec can implement Canada’s first law permitting physician-assisted dying, while the federal government decides on a framework for how to handle the tricky ethical issue, the Quebec Court of Appeal ruled on Tuesday.
|The Quebec Court of Appeal ruling means the province can implement Canada’s first law permitting physician-assisted dying.|
But contradictory legislation on the books leaves open the possibility that Quebec doctors who help patients die could be guilty federally while innocent provincially.
In February, the Supreme Court of Canada overturned a ban on euthanasia but suspended the application of its decision for a year to let Parliament draft new rules for when assisted suicide would be allowed, meaning the current federal law remains in force for now.
In Quebec (Attorney General) v. D’Amico, the Quebec appeal court overturned a lower-court decision that had left the provincial law in legal limbo. Quebec’s legislation was supposed to take effect on Dec. 10 but euthanasia opponents had contested it, saying it conflicts with Canada’s Criminal Code.
A spokesman for the federal government said it was reviewing Tuesday’s decision.
Pronovost said she was not concerned about Quebec doctors being sued or threatened with prosecution by performing euthanasia. Quebec has argued that euthanasia is a form of medical care, which falls under provincial jurisdiction.
The new Liberal government has asked the Supreme Court for a six-month extension on enacting legislation, saying last year’s election and the change of government set back drafting of replacement rules. The SCC will be hearing oral arguments on the extension Jan. 11, 2016.
Paul Saba, a Montreal family doctor who challenged the Quebec law in the lower court, said he would return to that court next year in a new legal bid to stop legalized euthanasia.
Saba and handicapped Quebecer Lisa D’Amico first sought legal action in that court in May 2014 to stop the provincial law.
“Euthanasia is a cheap and fast way to end suffering,” he said. “We are fighting for patients’ lives.”
Saba said he would argue that euthanasia is not a form of health care and Quebecers are not able to make a free choice when asking for assisted suicide because of errors by doctors in prognosis and diagnosing patients’ condition, along with inadequate palliative care.
Quebec Health Minister Gaetan Barrette, an advocate of the provincial law, told CBC television that while there will never be unanimity of views on such a topic, “there was a very, very large consensus.”
In Hinse v. Canada (Attorney General), the court dismissed Hinse’s appeal of a Quebec Court of Appeal ruling from last summer. The appeal court had overturned a 2011 Quebec Superior Court decision ordering the federal attorney general to pay him nearly $5.8 million in damages and other costs. The SCC’s decision means he will not receive any of those damages or costs.
As summarized in today’s decision, the 2011 ruling against the attorney general was on the grounds the minister had “committed a fault of ‘institutional inertia’ or ‘institutional indifference,’ and that a sustained, concerted and extensive review would have uncovered the errors” involved in his review of Hinse’s case.
Last summer’s Court of Appeal ruling, on the other hand, clarified that “the Crown can be held liable only if the decision was made in bad faith, and with malice,” the summary adds.
In its ruling today, the Supreme Court appears to offer a further clarification: “It would be inappropriate to apply a standard of fault that limits bad faith to malice..
Nevertheless, it continues, “In this case, H has failed to prove, on a balance of probabilities, that the Minister acted in bad faith or with serious recklessness in reviewing his applications for mercy. The documentary evidence negates the trial judge’s inference that there was no review whatsoever of H’s initial application for mercy. Although there are only a few documents in the record, they attest to the fact that a certain review was conducted and that certain actions were taken in this regard.”
Responding to the ruling, Brian Greenspan, who represented the Association in Defence of the Wrongfully Convicted, says he was disappointed the Supreme Court failed to recognize a distinction advanced in the trial both by Hinse’s own counsel and the team representing AIDWYC, between “the decision-making and policy function exercised by the minister and the failures which occurred here attributable to the bureaucracy.
“What was argued was a standard of negligence appropriate in civil cases to the failings of the operational side of the ministry — in other words, the way in which the application was treated by the bureaucrats,” Greenspan says. “And we argued that here there were serious failings, serious delays, a serious failure to provide the minister with the appropriate materials in a thorough and comprehensive review essential to the minister’s decision-making.
“The focus was directed at the bureaucracy’s response, and it was our view, which obviously the court hasn’t accepted, that that’s where the damages attributable to the federal government, should flow [from].”
However, Greenspan adds, the Supreme Court’s clarification that bad faith in deciding the liability of ministers should not be limited to malice could have some impact in similar cases where wronglfully accused are seeking compensation.
“Certainly they’re saying that you don’t need malice to find liability for the minister. So this case does at least clarify the fact that the minister doesn’t have to demonstrate malice to be civilly responsible.”
Hinse was sentenced to 15 years in prison for armed robbery in 1964, and was granted parole after serving five years. Maintaining his innocence, between 1967 and 1981 he applied three times for mercy to the federal minister of justice and applied as well to the Governor General in Council for a pardon. All these requests plus a fourth application for mercy in 1990 were denied.
A Quebec Police Commission ruling in 1989 declared he was the victim of a botched investigation, and finally, in 1997, the Supreme Court of Canada acquitted him.
Hinse then sued both the province of Quebec, the town of Mont-Laurier, and the federal attorney general. In out-of-court settlements, Quebec and Mont-Laurier agreed to pay him $5.55 million. After a lawsuit heard by the Quebec Superior Court, the attorney general was ordered to pay Hinse nearly $5.8 million. But the federal government appealed the decision with the Quebec Court of Appeal, leading to last summer’s ruling.
“We are honoured to have had the privilege to represent Mr. Hinse in fighting the gross miscarriage of justice of which he was a victim. However, we are very disappointed that a happier conclusion to an ordeal that has lasted some 50 years was not reached,” said Guy Pratte, a partner Borden Ladner Gervais. “We are grateful to all those who supported Mr. Hinse, and sincerely hope that any lawyer who has the chance to assist victims of injustice will seize the opportunity to do so. There is no greater calling for a lawyer than to try to right wrongs.”
April 20 – Federal – Sanofi-Aventis v. Apotex
Patent law: Sanofi-Aventis had patent protection for the hypertension drug Ramipril. The patents were set to expire in 2002. In an effort to extend the protection, Sanofi obtained a series of patents for other indications, which were challenged by Apotex, a generic drugmaker. Sanofi applied for prohibition orders, triggering a statutory stay that kept Apotex and other generic manufacturers from producing Ramipril for two years. At the Federal Court, Apotex argued that Sanofi had applied for prohibition orders only to delay Apotex from entering the market and sought damages for the delay.
Read the Federal Court of Appeal’s decision
April 23 – Quebec – Caplin v. Canada and Canada v. Barnaby
Extradition: The U.S. is seeking the extradition of David Caplin and Anthony Barnaby for the murder of two women. The alleged murders occurred in 1988 in New Hampshire. In 1990, Caplin was charged, but a successful motion to exclude evidence left prosecutors without a case, and the charges were dropped. Anthony Barnaby, meanwhile, was indicted and tried on three occasions, with each trial ending in a hung jury. In 2010, New Hampshire State authorities reopened the investigation and new warrants were obtained. The SCC will review the standards of due process that should be imposed on requesting states.
Read the Quebec Court of Appeal’s decision
Related news stories:
Top court to hear appeals in decades-old N.H. double murder, CTV News
Quebec refuses to return man for fourth murder trial, New Hampshire Union Leader
April 24 – Quebec – Quebec v. Canada
Constitutional law: Following the judicial review of Ottawa’s failed appointment of Justice Marc Nadon from the Federal Court to the Supreme Court of Canda, lawyer Rocco Galati and the Constitutional Rights Centre have sought judicial review of the appointment of Robert Mainville, who on June 13, 2014, was appointed from the Federal Court of Appeal to the Quebec Court of Appeal. The SCC has been asked to resolve whether s. 98 of the Constitution Act applies to Quebec’s appeal court, and whether someone from the Federal Court can be appointed to the appeal court.
Read the Quebec Court of Appeal’s decision
Related news stories:
Quebec Court of Appeal rules in favour of Robert Mainville appointment, The Globe and Mail
Toronto lawyer Rocco Galati tries to block another Harper judicial appointment, Toronto Star
The decision, which came down Friday, is an important win for the plaintiffs in their efforts to be compensated for monies lost as a result of the “egregious negligence of Coopers in the services it provided to the Montreal-based company, Castor Holdings Ltd.,” says Mark Meland, a partner with Montreal’s Fishman Flanz Meland Paquin LLP
With interest the claims amount to more than $1 billion. Meland says the decision also sends a message to PwC and Coopers and its individual partners that the Quebec courts will not assist in their efforts to “evade financial responsibility for judgments rendered, and to be rendered, against Coopers or in their continued litigation strategy which has been described by the courts as ‘a scorched-earth war of attrition.’”
As announced on Jan, 9, 2014, the Supreme Court of Canada dismissed Coopers’ application for leave to appeal in the “test case” on negligence (the action instituted by the late Peter Widdrington — former CEO of John Labatt Ltd. and president of the Toronto Blue Jays) and confirmed Coopers’ liability for its professional negligence and for the resultant harm suffered by third parties who relied on its opinions when deciding to invest in or lend money to Castor.
PwC has publicly taken the position it has no responsibility towards the Castor claimants. However, when PwC was formed in July 1998, a mere two months before the start of the Widdrington trial, Coopers’ assets were transferred to the new entity, purportedly leaving its liabilities and contingent liabilities (including the Castor claims) behind. The plaintiff in last Friday’s appeal was the Trustee in Bankruptcy for Castor, Richter Advisory Group Inc. represented by Fishman Flanz, which also represents Widdrington and various Canadian and foreign banks.
“We took a ‘bulk-sale’ proceeding in Quebec where essentially the conclusion we’re seeking is that all of the assets that were transferred from Coopers & Lybrand to PricewaterhouseCoopers remain subject to any judgment we ultimately are able to achieve in the various cases,” says Meland.
PwC took the position because Coopers & Lybrand and Pricewaterhouse were Ontario-based firms the laws of Quebec were not applicable and they made an exception to dismiss the bulk-sale proceeding on the basis that Quebec did not have jurisdiction. It was unsuccessful before the Superior Court and the Court of Appeal.
“That means now in addition to pursuing our claims against Coopers & Lybrand, now that they have been found to be negligent we intend to pursue our claims against PwC up to the value of all of the assets of Coopers & Lybrand that were transferred to the new firm,” says Meland.
Richter alleged the transfer of Coopers’ assets in 1998 was illegal, as it failed to comply with the applicable public order provisions of the Civil Code of Quebec governing the sale of an enterprise. PwC’s and Coopers’ attempts to block Quebec’s jurisdiction to rule on this matter were unsuccessful before both the Superior Court and the Court of Appeal and these firms will now have to defend this substantial action before the Quebec courts.
On behalf of the plaintiffs Fishman Flanz is also suing all of the professional liability insurance companies that insured Coopers and Lybrand at the time.
“In that case the issue before the court is whether or not the defence costs —which are enormous — incurred by Coopers & Lybrand and funded by the insurance companies — should not deplete the amount of insurance available to satisfy our claims,” says Meland.
Late Friday, Justice Minister Rob Nicholson announced the appointment of Gordon Weatherill of Vancouver’s Lawson Lundell LLP to the Supreme Court of British Columbia. He replaces Justice G.D. Burnyet, who became a supernumerary judge last year. Weatherill had been with Lawson Lundell since 1980 and mainly practised in the area of commercial litigation.
|Jocelyne Gagné is one of two partners from Lavery de Billy who has been named a judge.|
Also in Ontario, Ian Leach, a partner with Lerners LLP in London, joins the Superior Court bench in Woodstock, Ont. He replaces Justice Thomas Heeney, who becomes regional senior justice for the southwest region following the departure of Justice Edward Ducharme to the Ontario Court of Appeal on April 5. Leach had been with Lerners since 1991.
In Quebec, Lavery de Billy loses partners Michel Yergeau to the Superior Court in Montreal. He replaces Justice J.R. Fournier, who joined the Quebec Court of Appeal last fall. Yergeau, who devoted his whole practice to environmental law, had been with the firm since 1987.
The same firm, in fact, saw another parnter also appointed to the bench, this time at the Federal Court. Jocelyne Gagné replaces Justice Johanne Gauthier following her move to the Federal Court of Appeal last fall. Gagné’s main areas of practice were civil and commercial litigation.
In Newfoundland, Rosalie McGrath of the firm Ottenheimer Baker in St. John’s joins the trial division of the Supreme Court of Newfoundland and Labrador. She replaces Justice J.D. Cook, who became a supernumerary judge on May 21. McGrath had been a lawyer since 1994 and practised mainly in the areas of corporate and commercial, real estate, energy, and estates law. She was also a member of the firm’s management committee.
Prime Minister Stephen Harper appointed Justice Nicole Duval Hesler to the position of chief justice of the Quebec Court of Appeal on Oct. 7. She replaces Justice J.J. Michel Robert, who retired on Sept. 1.
Martin Sheehan, president of the CBA’s Quebec branch, says Duval Hesler is “an all-around well-diversified and thorough jurist.” He is confident she will excel as chief justice, not only because she is well-liked by the members of the court but also because she embraces technology.
“She was clearly one of the first technology-friendly judges. Years ago when you pleaded before her you would hear her type on a laptop . . . when nobody else was doing that. So that to me is refreshing,” he tells Legal Feeds. “I think that one thing that the law in Quebec needs is to get into the 21st century and be more technologically friendly.”
Duval Hesler is no stranger to the bench. She was appointed to the Quebec Superior Court in 1992 and then to the Quebec Court of Appeal in 2006. Prior to her appointment to the bench in 1992, she was a partner at McAllister Blakely Hesler & Lapierre. Her main area of practice was civil litigation with an emphasis on tort law, product liability, construction law, insolvency and environmental law.
She was called to the Quebec bar in 1968 and served on the Canadian Human Rights Tribunal from 1979 to 1992.
She has been a frequent speaker for various organizations, including the Canadian Bar Association.
Sheehan says the fact that Duval Hesler is the first female chief justice is a sign of what the legal profession in Quebec has accomplished but it’s not why she was appointed.
“She will be a great ambassador for people,” he adds. “She has always been seen as a judge for whom justice and equity go hand-in-hand in the sense that she believes that justice is a tool to do good.”
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