In 1992, a striking gold miner in the Northwest Territories (NWT) planted a bomb which killed nine replacement workers. The ensuing judicial saga, in which the widows of the murdered men sought compensation in tort from the security company guarding the mine, the union, and the territorial government branch responsible for mine safety, ultimately came to naught with the SCC’s recent decision in Fullowka v. Pinkerton’s of Canada Ltd, 2010 SCC 5,  commented on at TheCourt.ca by Daniel Del Gobbo here. The Supreme Court’s lengthy decision offers a comprehensive analysis of the stages of a claim for negligence. One notable aspect of the judgment is the Court’s consideration of government liability in tort for failure to enforce statutorily imposed standards of safety, and in particular the surprising extent to which receiving legal advice interpreting responsibility narrowly can insulate the government from liability.

Fullowka suggests that taking legal advice will be a powerful shield against claims of negligence – even when the advice is suspect.  The plaintiffs asserted that the NWT government’s decision not to close the mine in the face of ongoing threats and acts of violent sabotage amounted to a failure to meet the standard of care it owed under the Mining Safety Act. The Court rejected this argument, finding that the government met its standard of care by virtue of its good faith reliance on legal advice stating the government did not have the authority to close the mine in the circumstances. The gist of this advice was that an order to close the mine would be outside the jurisdiction of the government’s Mine Safety Division because, in the context of strike-related violence, such an order would more properly be within the purview of either the RCMP (as a criminal matter) or the Labour Board (as a matter of labour relations.) Although the legal opinion received by the government was wrong, the mere fact that it was relied upon in good faith was enough to relieve the government of any responsibility for the deaths.

Writing for a unanimous Court, Justice Cromwell agreed in no uncertain terms with the trial judge that the legal opinion was wrong: Read the rest of this entry »

For those of you who have been “taxed” at the border for alcohol, you may find the Federal Court of Appeal’s recent decision in Philip Anisman v. Canada Border Services Agency et al., 2010 FCA 52, potentially useful. Pursuant to an agreement signed between the Government of Canada and the Liquor Control Board of Ontario (LCBO) in 1993, custom officers working for the Canada Border Services Agency (CBSA) collect mark-ups on imported alcohol. In January 2007, Mr. Anisman paid a mark-up of $537.13 to the CBSA, which was remitted to the LCBO. He made a request to the CBSA that the mark-up be refunded. After consulting the LCBO, the CBSA informed Mr. Anisman that the mark-up was non-refundable. In response, Mr. Anisman made an application to the Federal Court for judicial review of the CBSA’s decision to refuse the refund. The CBSA filed a motion for an order dismissing the application for judicial review on the primary ground that the Federal Court did not have the jurisdiction to grant the requested remedy. Jurisdiction was lacking because the CBSA was not acting as a “federal board, commission or other tribunal” within the meaning of s. 2 of the Federal Courts Act. Mr. Anisman filed a cross-motion for an order granting summary judgment and requiring a refund of the mark-up on the primary ground that the CBSA was not authorized by federal legislation to enter into the aforementioned agreement to collect mark-ups on behalf of the LCBO. At the Federal Court, Barnes J. dismissed both motions. Nadon J.A., writing for the Federal Court of Appeal, overturned portions of the lower court decision.
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A few weeks ago, the Supreme Court denied leave to appeal in Slahi v. Canada (Justice), 2009 FCA 259, first canvassed on TheCourt.ca by Padraic Ryan here. My post aims to briefly examine the international law aspects of the case and their relation to the Charter.

Slahi affirms the recent line of jurisprudence (culminating in Canada (Prime Minister) v. Khadr, 2010 SCC 3) concerning the applicability of section 7’s right to life, liberty, and security of person to Canadians detained at Guantanamo Bay. Of course, “Canadian” may be a misnomer in Mr. Slahi’s case: he is a landed immigrant, which the Federal Court of Appeal ruled disqualifies him from the benefit of Charter protections overseas.

The plain language of section 7 extends its protection to “everyone”, not just citizens.  Such a broad classification would initially seem to include persons of the claimant’s status.  However, as Justice L’Heureux-Dubé rather sardonically observed in R. v. Cook, [1998] 2 S.C.R. 597, “I am not convinced that passage of the Charter necessarily gave rights to everyone in the world, of every nationality, wherever they may be, even if certain rights contain the word ‘everyone’.”

“Everyone” has been previously found to include non-Canadians claiming Charter protections abroad where circumstances establish a nexus with Canada. During his detention at Guantanamo Bay, Mr. Slahi was interviewed by representatives from the RCMP and Canadian Security Intelligence Service about matters relevant to his pending habeas corpus petition. Records from this interview were subsequently forwarded to U.S. authorities. Further, Mr. Slahi resided in Montreal between November 1999 and January 2000, after having been granted landed immigrant status. The question before the court was whether the Canadian government’s participation in Mr. Slahi’s interrogation and/or his residency status sufficiently connected the claimant with Canada such that his section 7 rights were engaged.

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The Supreme Court of Canada recently released official statistics on its work in 2009 along with comparisons with the previous ten years: Bulletin of Proceedings: Special Edition, Statistics 1999 to 2009 (26 February 2010). The official statistics are interesting and insightful. In light of recent, flavourful TheCourt.ca posts by my friend James Yap (“Judgment of the Decade,” “the First Annual Ozzy Awards”) I decided to add to the official statistics by compiling some judge-specific statistics of my own, included in the second half of this post.

Applications for Leave
In 2009, 556 appeals were filed with the Supreme Court of Canada, of which 542 were applications for leave to appeal and 14 were appeals as of right. 518 of these applications were considered by panels of the Court for decision (the remaining carry over to 2010). Not surprisingly, more than half the applications originated in either Quebec or Ontario (139 and 137, respectively).
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SCOTUS chief to (not) retire
Breaking news: John Roberts, the Chief Justice of the United States, is retiring “for personal reasons,” Radar online reported yesterday. Actually, just kidding! Radar, known more for following Hollywood celebrities than Supreme Court justices, retracted the story less than an hour later, but not before it had ricocheted across the Web: The Huffington Post put up a story which noted that “[w]hile RadarOnline doesn’t give a reason for the possible retirement, Roberts, 55, has suffered two seizures, in 2007 and 1993. Time magazine speculated in 2007 that Roberts may have epilepsy.” The “news” was also picked up by The Drudge Report, which ran the “shock report” but also quoted a SCOTUS source saying “this is not happening … news to me.” (HT: Gawker.) As it turns out, it was probably news to Roberts as well. As Above The Law explains, the rumour started in a first-year criminal law class at Georgetown University Law Center, when Professor Peter Teague walked into his morning class and announced that, as relayed by one of his students, “we might find it interesting that tomorrow, Roberts would be announcing his retirement for health concerns.” Teague shared the shocking news at 9 a.m. and Radar had a story up 10 minutes later (talk about speedy reporting). Their first retraction came at 9:36 a.m., six minutes after Teague told his class that his comments were a joke meant to make a point “on the credibility and reliability of informants.” ATL, who to their credit sought to do some independent reporting before running the story, noted that the news never really passed the smell test to begin with: “One of [ATL's] SCOTUS experts actually laughed out loud after we (sheepishly) asked, ‘Have you heard anything about a possible Roberts retirement?’ This source noted that [Roberts] would sooner die — literally — than give Obama the chance to appoint his successor.” Read the rest of this entry »

Introduction

This past Monday (March 1, 2010), the Ontario Court of Appeal heard arguments from Rob Ramage’s lawyers in the appeal of their client’s convictions and sentence for dangerous driving and impaired driving. What is of note in this case, beyond the former Toronto Maple Leaf captain’s public image, is the application of the recent Grant decision of the section 24(2) analysis in excluding evidence. This appeal is the first major test in Ontario of how the principles in Grant will be applied in Ontario.

Background

Rob Ramage was driving a rental car with his friend Keith Magnuson in December 2003, when he lost control of the vehicle and smashed into two oncoming vehicles. Magnuson was killed, and Ramage sustained serious injuries. Ramage was arrested and placed in the custody of Constable Andrew Cole. As Ramage lay on a hospital bed, heavily injected with morphine to blunt the pain of his wounds, he asked to go to the washroom and was handed a plastic cup. When he was finished, Constable Cole asked Ramage if he could have the urine. Ramage reportedly responded, “yeah, yeah”. This sample was a crucial piece of evidence at trial, as it showed that Ramage’s blood alcohol level greatly exceeded the legal limit. Read the rest of this entry »

The Alberta Court of Appeal recently released its decision in Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26, dealing with time extensions by the Privacy Commissioner and consequences following the breach of the time rules set out in Personal Information Protection Act (PIPA), S.A. 2003, c. P-6.5. The Court of Queen’s Bench had held that if an investigation is not completed within 90 days then the Privacy Commissioner would lose jurisdiction over the case. Although the ABCA agreed with the final judgment of the Court of Queen’s Bench, it did not follow the same reasoning. The ABCA also set out various principles in its judgment that might have a detrimental impact on the Office of the Information and Privacy Commissioner (IPC) in the form of increased number of cases for judicial review, unnecessary delays, increase in backlog of cases due to the time constraints, and other administrative difficulties.
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(Editor’s Note: The author, Richard Butler, is a constitutional lawyer with the B.C. Ministry of Attorney General. The views expressed are those of the author, and not his employer.)

Introduction

A profound change of thinking on constitutional design is evident in the Supreme Court’s recent jurisprudence -  a change made manifest in the Court’s evolving approach to the doctrines used to determine division of powers cases.

Rather than using paramountcy to protect occupied federal fields through negative implication or engaging in the fiction of partially-occupied fields, the courts have come to reject “virtual federal paramountcy” altogether.  Examples of these three alternatives can be found in Robinson v Countrywide Factors Ltd., [1978] 1 S.C.R. 753, as per Laskin C.J.C. dissenting, Spence J., and Beetz J., respectively.  Indeed, courts have chosen to address actual repugnancies, operational conflicts (Multiple Access v McCutcheon, [1982] 2 S.C.R. 161), and the frustration of constitutionally-valid purposes of Parliament (Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13).

Further, instead of using interjurisdictional immunity to defend a nebulous “core” of federal powers in Canadian Western Bank v Alberta, 2007 SCC 22 and British Columbia (Attorney General) v Lafarge Canada Inc., 2007 SCC 23, the courts decided to use this doctrine only to protect such aspects of legislative powers as are vital or essential to a legislature’s jurisdiction over any person, thing or activity.

The Supreme Court has underlined the importance of avoiding regulatory vacuums and achieving, wherever possible, of the policy objectives of both levels of government. In other words, to expand upon the language of Ont. (A.G.) v Chatterjee, 2009 SCC 19: administrative cooperative federalism. The purpose of this posting is two-fold: to reflect further on the Court’s decision in Consolidated Fastfrate Inc. v Western Canada Council of Teamsters, 2009 SCC 53, commented on here, with that evolution in mind; and, to muse about what may happen next as the Court deliberates on the division of powers in other contexts.

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On February 2 the Ontario Court of Appeal rendered its decision in Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, a professional ethics/discipline case concerning the stiff prohibition on sexual relations between medical professionals and their patients.

In December 2004, the appellant Vincent Leering, a chiropractor, commenced an intimate relationship with a woman. They began to co-habit in March 2005. In April 2005, this girlfriend of his sought chiropractic treatment from Leering. Leering had her sign an informed consent to treatment form, opened up a patient file for her, and filled out a patient entrance form. Between April and October 2005, Leering provided her with treatment on 28 occasions, both at home and at the clinic. Because she had insurance coverage for these treatments, Leering billed his girlfriend.

In October 2005 the couple broke up. Treatments ceased. Leering sent a bill for the approximately $600 balance owing. When she did not pay, he referred the account to a collection agency. The ex then complained to the College of Chiropractors of Ontario about (only) the bill. Alerted to the existence of a possible professional-patient sexual relationship, the College brought Leering before its Discipline Committee, which found that Leering had committed sexual abuse of a patient within the meaning of the Health Professons Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and revoked his certificate of registration for a period of 5 years. Read the rest of this entry »

When two trial courts faced with similar facts come to opposite conclusions, it’s almost certain that the cases will go up the appellate ladder. So it is with two class actions getting underway against CIBC and the Bank of Nova Scotia, both of whom are alleged to have withheld overtime pay from their employees.

The plaintiffs in both cases (Fresco v Canadian Imperial Bank of Commerce and Fulawka v. Bank of Nova Scotia) are bank tellers and other customer service representatives and account officers. They are being represented by the same firm, and the cases are in many ways carbon copies of each other. The core issue is whether the banks’ overtime policies contravene the Canada Labour Code. Specifically, both banks require that overtime be approved in advance; if not, it is not paid. However, section 174 of the CLC provides that when an employee is “required or permitted” to work more eight hours a day, then that person must be paid at least 1.5 times their regular rate. The argument is that many employees must work overtime to meet their sales goals and customer service standards, but they are rarely compensated for it. In a decision released in June, Justice Lax denied certification of the action against CIBC (2009 CanLII 31177); that decision was appealed to the Divisional Court, which will hear argument in the case sometime in March. The appellants’ case got a boost on February 19, when Justice Strathy released his decision in the Scotiabank case (2010 ONSC 1148), in which he disagreed with Lax J.’s view of the issues and held that the case should be certified and go to trial.

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