Lawyer Robert Miedema, at Boyne Clarke in Halifax, recalls many snowy winters but he has never seen an army of men of all shapes and sizes with tiny shovels, freeing the byways of accumulated snow.
The statute is a pick for one of the goofiest Canadian laws still on the books. Canadian Lawyer surveyed practitioners across the country about the dumbest laws in existence — some merely vexing, some upsetting, some ridiculous, and some simply sublime. The responses vary from the silly to the serious.
As for Miedema, his choice of profession denotes a public commitment to uphold just and considered legislation. But in terms of this law and his own compliance: “I am going to have to exercise a Charter right to not incriminate myself.”
We of the north long to escape too-long winters for sun and swimming, and that much-needed statutory two-week vacation should be fun and simple. Not.
Patrizia Piccolo, of Toronto’s Rubin Thomlinson LLP, receives weekly calls from confused employers about the Ontario Employment Standards Act. Employees earn their two weeks after one year at work, but often expect time off within their first year. And so it’s common for employers to ignore the act. Vacation (and vacation pay) can be accrued with each paycheque if everyone involved agrees — but that can lead to confusion in the payroll department when different workers want different options. And what of terminations: “Are we going to make them pay it back?” asks Piccolo. Plus there’s the confusion over the vacation pay of employees offered more than two weeks. Piccolo says until the Ontario Employment Standards Act vacation provisions are amended to reflect current practices, employers should craft clear employment contracts and publish clear policy guidelines relating to vacation entitlements in excess of the statutory minimums.
And then buy a bathing suit.
While on vacation, it’s bad form to leave rubbish in someone else’s neighbourhood. But Montreal lawyer Yvan Biron, of Lavery de Billy, is just as concerned with what’s missing in his homegrown Loi sur la qualité de l’environnement, Quebec’s environmental quality act. He wants more detailed standards for wastewater. While larger municipalities such as Montreal have set their own rules, many smaller cities and towns have never bothered.
“We are not as green as we think we are,” says Biron. The lack of tough standards for wastewater — for industry, agriculture, and municipal water purification plants — is a “big, big hole.”
Interestingly, Biron says industries such as pulp and paper have spent time and money greening up their wastewater runoff. Agricultural producers lag behind. More generally, he says, individuals are awful litterbugs; per capita garbage output has gone up in Quebec. It seems we notice trash elsewhere, but not in our own overflowing garbage bins.
Letcher Akelaitis LLP’s Gary Letcher in Vancouver wants nothing less than to jumpstart a conversation between government, industry, and green activists to create a new environmental framework for the 21st century. The existing legal patchwork stitches up wonky scraps of various vintages into an ugly mess: “It’s time, in a consistent way, to look at environmental law,” and make some clear-eyed decisions.
Letcher cites British Columbia’s clean-up standards for contaminated sites. How much of an expense is justified? A clean-up could cost $1 million. That same amount could fund 10 new hospital beds. What’s the better choice? he asks. Finding a balance will take time and talk.
The relationship between the Crown and Aboriginal Peoples is a constitutionally mandated knot. Governments have a duty to consult with First Nations when proposed projects may impact land and resources claimed by aboriginals. Adrienne Mercer, who practises in the St. John’s office of McInnes Cooper, notes the Crown often delegates that duty to proponents — that is, to hydro-electric companies, wind farmers, mining corporations, and others. But, Mercer says drily, “the extent of that consultation is not always clear.”
In Newfoundland and the other Atlantic provinces, there are no useful guidelines to help both sides tease out the tangle together. And so with expectations all over the place, negotiations can last “multiple, multiple years,” she says, causing her industry clients to sometimes simply give up and walk away.
When it comes to negotiations, Jerome Slavik, of Ackroyd LLP in Edmonton, might be said to be on the other side of the table. He is appalled by the federal Specific Claims Tribunal Act. The tribunal is billed as an independent adjudicator to speed the resolution of First Nations claims, and to consider claims that may have lapsed. If only the tribunal worked. “After six years of operation, the government has undermined this low-cost expeditious forum, it’s even longer and more expensive than going through the courts, and very few decisions have been rendered. The whole thing set us back 10 years.” One of Slavik’s clients has spent 15 years and $1 million trying to settle a claim.
The legislation must be redrafted to “prevent the Crown from abusing the process,” and more money and resources are needed, he suggests. Indeed, in his 2014 annual report, tribunal chairman Justice Harry A. Slade noted that as of the time of writing, he was the only full-time member: Without additional assistance, Slade wrote, “The Tribunal will fail.”
Calgary tax lawyer Patrick Lindsay, of Wilson and Partners LLP, was forced to relitigate a case won some 30 years ago, but the federal revenue agency didn’t seem to care.
The issue is an education credit in the Income Tax Act (Paragraph 118.2(2)(e)). Parents can claim 15 per cent of the tuition for sending a child with a “mental impairment” to a specialized private school (for Lindsay’s client, that works out to $1,500 annually). The child must be two years behind in learning and be vetted by various tests and experts, but Lindsay says the archaic language in the act has led to a continued misunderstanding of the definition of “impairment.” Lindsay says he’s just won the case again. But he worries the problem will recur until the language is updated.
Or until CRA follows the rules.
Winnipeg’s David Matas says immigration law is even more complex than tax law, a bewildering maze that must be negotiated by people who often don’t have either French or English as a first language. And as such, Matas says, they can end up in Canada permanently separated from their loved ones.
Once an application to immigrate is filed, it takes at least three years to be successfully processed. But lives don’t stand still, and over time applicants may fall in love or have a baby, and not think to declare them. But Canada’s “family class” category excludes what’s called “non-examined, non-accompanied dependents,” meaning a newcomer will discover they cannot sponsor family members. Matas can ask that a child be accepted on humanitarian grounds, “but it doesn’t happen. They just say, ‘You didn’t follow the rules.’ And once you don’t disclose, it’s a lifelong brand.
Your wife ceases to be your wife. Those who do understand the language on the forms and properly file an amended application will lose as well; for them, the three-year clock starts ticking again from zero.”
Perhaps now is the time for a bit of good news, and the acknowledgement that every so often, making a ruckus can work. In late December, Citizenship and Immigration Canada announced a pilot program to allow the foreign-born spouses of Canadians to work while the state processes their permanent residency applications. Unfortunately, that doesn’t help clients of Calgary’s Kevin Zemp who have already fled the country. A Canadian who could not work because of complications from a pregnancy brought her husband to Alberta, where many companies are desperate to find qualified employees. The computer-savvy husband received almost a dozen job offers, but could accept none. Spouses must wait 16 months before they can legally take a job. After a year, and the government’s refusal to extend a work permit on humanitarian grounds, the family was destitute. “He finally took a job outside the country and they left. It makes me mad every time I think about it,” says Zemp.
The pilot project was announced just days after Zemp nominated the work permit rule as Canada’s dumbest. “Too bad it took them so incredibly long and allowed such terrible suffering until they changed it. I am glad they made the change, I am just amazed that such a simple common sense thing took so long.”
Somewhere in the Canadian Intellectual Property Office sits a civil servant waiting for the phone to ring. The Integrated Circuit Topography Act came into force in 1993, and in more than 21 years perhaps 80 registrations have been filed. The act offers 10 years of protection for 3D integrated circuits, a technology that appears to have been superseded, according to Bruce Green of Vancouver’s Oyen Wiggs Green & Mutala. Otherwise inventors would be filing up a storm. “It’s just not filling a need,” says Green, “it’s just a lonely little act.” It’s time to say goodbye, Integrated Circuit Topography Act.
On the other hand, pharmaceuticals continue to be a very busy area of IP law. Ronald Dimock, of Dimock Stratton LLP, points to the Patented Medicines (Notice Of Compliance) Regulations. Created in 1993, the act concerns the manufacture of generic drugs. But the original innovator almost always contests the licensing request, calling it a patent infringement.
The law holds that such cases are heard by the Federal Court of Canada, but the hearing does not have the standing of a formal trial. Despite this, the parties must hire lawyers, experts, do examinations, prepare reports, and more, all to be presented to the judge (who never actually gets to see a witness in person). Yet the issues are terribly complex, says Dimock, and often presented to a scientific layperson. And after all that, the decision can be appealed (and almost always is), where the process is repeated as a “real” court case. “It’s been a boon to patent litigators,” says Dimock.
There’s more. A PMNOC case must conclude within two years of being filed. So such hearings leapfrog over others, and can contribute to backlogs. Proving that lawyers care more about creating a better system than ever-higher billables, Dimock says it would be better to sidestep PMNOC hearings entirely, and go directly to trial.
Consider this juxtaposition: In November 2012, voters in the U.S. states of Washington and Colorado legalized the possession of small amounts of marijuana. That same month, the government of Stephen Harper brought in the tough-on-crime Safe Streets and Communities Act that imposes a mandatory six-month minimum jail sentence for anyone growing as few as six pot plants and who shares the buds with pals hanging out in the living room — that could be considered trafficking. Alan Young, a professor at Osgoode Hall Law School, sees s. 7 b(i) of the Controlled Drugs and Substances Act as criminalizing “otherwise law-abiding, productive citizens.” Young will oversee a group of law students in 2015 who hope to challenge the mandatory minimum in court.
James Lockyer, of Lockyer Campbell Posner, helped found the Association in Defence of the Wrongly Convicted. When considering an appeal, the courts, he complains, only consider errors in process, but do not engage in a smell test of the case itself. In the U.K., the concept of “lurking doubt” allows a higher court to quash a conviction “even though nothing procedurally is wrong,” says Lockyer. “Courts of appeal should be prepared to conclude that there is a lurking doubt that the conviction is sound.” Such a change would involve a reinterpretation of s. 686 of the Criminal Code, says Lockyer — and to do so, the Supreme Court of Canada would have to overturn itself in a case that dates back to 2000, R. v Biniaris.
Even when you win, you lose. Disciplinary hearings under the Ontario Securities Act can be long and complicated. Lenczner Slaght securities litigator Linda Fuerst points to an insider trading case in 2014 that took 43 days, over several months. The costs on both sides would have been rather high. Luckily, a tribunal can order some of the commission’s costs be reimbursed by the respondent — for expert witnesses, for example. Unluckily, a respondent who is exonerated cannot have the favour returned. The respondent must bear all the expenses of a successful defence.
“It’s a one-way street,” Fuerst says. Such costs are “a threat” to a respondent, who may well feel coerced into settling. She points to other administrative tribunals, such as the Law Society of Upper Canada or the Ontario College of Physicians and Surgeons that can order costs to successful respondents.
HUMAN RIGHTS LAW
Many people want to work beyond age 65, and the Ontario Human Rights Code has long abolished the mandatory retirement age. But what a way to make a living: The provincial Employment Standards Act still allows for age-based discrimination, says Kate Hughes, of Toronto’s Cavalluzzo Shilton McIntyre Cornish LLP. “Once you hit 65 you’re cut off from benefits plans,” she explains.
No pension, no contract with group insurers, nothing. The clash of the acts is being challenged in court, and Hughes hopes to see the Employment Standards Act modified.
Sometimes politicians do keep their promises. On Jan. 1, the Liberal government of New Brunswick eliminated a requirement that women seeking fully funded abortions in that province have the approval of two doctors (to certify that the procedure was “medically necessary”). But Maritimers like Amy Sakalauskas continue to pressure N.B., and other governments: “Abortion access is especially difficult on the East Coast,” says Sakalauskas, a child protection lawyer for the province of Nova Scotia. “Those laws need to go.”
A similar two-physician restriction still holds in neighbouring Prince Edward Island. The lobby group Abortion Rights Coalition of Canada hailed the decision in a press release, but demanded that New Brunswick also repeal “a second restrictive regulation that denies public funding to private clinics providing medically required services. This is prohibited by Health Canada.” The Medical Services Payment Act, Chapter M-7, s. 2.01, states, “the medical services plan shall not provide payment for . . . entitled services furnished in a private hospital facility in the Province.”
ARCC also wants hospitals to accept self-referrals (as many women do not have a family doctor), and negotiate a reciprocal billing agreement with women from P.E.I. seeking fully funded abortions.
For Clayton Ruby, of Ruby Shiller Chan Hasan, rights should be extended beyond humans. Lucy the elephant lives in an Alberta zoo, and her allies say she is alone, miserable, and ill-treated. Elephants, however, are not entitled to constitutional protection. Ruby says humans should be granted the legal right to speak for the mistreated creatures who cannot speak for themselves. Ruby wants an expansion of “public interest standing,” to “allow an ordinary citizen to raise animal cruelty concerns when the government will not.”
Exactly how important is fertilizer to Canadian identity?
Chad Eggerman, a partner at Miller Thomson in Saskatoon, wants to tighten up the Investment Canada Act, which gained widespread attention when Saskatchewan’s premier demanded a foreign-owned company be blocked from purchasing a controlling interest in PotashCorp.
The act allows the government to decide if a foreign investment is of a “net benefit” for Canada. Under that definition, a Conservative government could make a decision that was the exact opposite of a previous Liberal government’s, yet both could claim allegiance to the act’s intent. With foreign companies flaunting big money — $400 million to start — say they (and their bankers) want certainty when planning an investment, seeking to conform to clear and specific laws before shovelling even huger sums into a project.
Eggerman says foreign companies want to decouple politics from compliance with the law. “It’s a critical piece of law in the country, and no one really knows what it means or says. It was intentionally drafted to lack certainty.”
Somehow, that does seem very . . . Canadian.