R v DC and R v Mabior: Revising Cuerrier?

The Supreme Court will be revisiting the highly contentious Cuerrier decision on February 8 when it hears R v DC and R v Mabior together. Given the tremendous progress in the medical field in the treatment of HIV since 1998, the Court must address the meaning of “significant risk of harm” as the legal test in R v Cuerrier, [1998] 2 SCR 371.

In both DC and Mabior, the respondents were convicted by their respective trial judges for failing to disclose their positive HIV statuses to their partners. DC was charged with aggravated sexual assault in Quebec, and Mabior was charged with aggravated sexual assault in Manitoba. Both cases were overturned on appeal because the viral loads during the course of the sexual contact in question had not had the effect of exposing the partner to a significant risk of contracting the virus, or in the words of the Court in Cuerrier, “serious bodily harm.” On August 25, 2011, the Supreme Court granted leave to appeal for DC, holding that it would be heard with Mabior.

The Cuerrier court narrowly sided with Cory J to articulate a test for determining when fraud vitiates consent. In order for fraud to vitiate consent the dishonesty had to have resulted in actual harm or “a significant risk of serious bodily harm.” In this sense, knowingly exposing a sexual partner to HIV amounts to aggravated assault. But might it be time for the Supreme Court to revisit the issue?

AIDSLaw has invited Canadian and international organizations and professionals working on issues related to HIV/AIDS and in the fields of public health and law to endorse a statement establishing that people living with HIV are not criminally liable in cases where the threshold of significant risk is not met. They suggest that the criminal law be based on the best available scientific evidence, not on assumptions, prejudice or fear. In fact, studies suggest that this type of criminalization results in HIV victims being less likely to disclose. This defies the very purpose of the law laid out in Cuerrier, with the objective of making it mandatory to disclose.

While HIV still poses serious health concerns, these two cases invite Canada’s top court to determine what constitutes significant bodily harm in the context of recent medical breakthroughs in HIV/AIDS treatment.

Read more about these cases on TheCourt.ca here and here.

Trying for Home-field Advantage

In Momentous.ca v Canadian American Association of Professional Baseball Ltd, the Supreme Court will have the opportunity to revisit the jurisdiction test it set out in Antares Shipping Corp. v The Ship “Capricorn” et al., [1977] 2 SCR 422 (based on the leading House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd, [1986] 3 WLR 972, 3 All ER 843, [1987] AC 460) and later clarified in Amchem Products Inc. v BC (Worker’s Compensation Board), [1993] 1 SCR 897.

Encouraged partly by a dead-last finish in standings and partly by the financial difficulties that ensued, Rapidz Baseball applied to dissolve the team it operated in Ottawa from its contract with the Can-Am Baseball League (based in North Carolina). In response, the League terminated the team’s membership, denied their application of voluntary withdrawal, and seized the team’s $200,000 surety.
Based on the forum selection clause in the contract and agreement to resolve all disputes in North Carolina, the League brought a motion under Rule 21.01(3)(a) of the Rules of Civil Procedure to have any proceedings stayed or dismissed, claiming that an Ontario court did not have jurisdiction over the matter.

An Ontario court could gain jurisdiction if a defendant consented, was present in Ontario, or could pass the “real and substantial connection” test to explain why the case should be heard in this jurisdiction. Once any of these conditions is fulfilled, the court must then determine whether they should, in fact, take jurisdiction based on established considerations, like where the contract was signed, and what legal system it falls under (Young v Tyco International of Canada Ltd., (2008), 92 OR (3d) 161 (CA)). In this case, because the parties had agreed to resolve disputes in North Carolina, the onus shifted to the plaintiff-appellant to demonstrate why that forum is no longer suitable.

At issue for the Supreme Court now is whether, given the terms of the agreement, the Ontario Court of Appeal erred in upholding the Superior Court decision that Ontario was a forum non conveniens, having already established that the province had jurisdiction.
In Amchem Products, Sopinka J addressed the dangers and injustice related to allowing parties to shop for the forum most judicially advantageous, instead of proceeding with the case in the forum most closely connected with the matter. This is to ensure that the court can contribute to creating fair and equitable results in an increasingly globalized commercial world.

It will be interesting to see whether the Supreme Court uses this case to simply reiterate its position on discouraging forum shopping, or suggest a revised test that accommodates parties with equally meritorious arguments, particularly when not one or the other will result in some kind of injustice (cf. Recherches Internationales Québec v Cambior Inc., [1998] QJ No. 2554 para 82).

Read more about this case on TheCourt.ca here.

Cst. Parker was testifying against Mrs. Penner when the court became aware of what the prosecutor termed a “chirping” noise from the back of the courtroom, a sort of “running commentary” on the proceedings:

“That’s your f***ing opinion”!! (para 9) Mr. Penner audibly added to Cst. Parker’s testimony. When Cst. Parker finished on the stand, he took the seat at the back next to Cst. Koscinski and warned Mr. Penner he would be arrested if there were any more disturbances. As Mrs. Penner rose to testify, Mr. Penner struck up his commentary again. The prosecutor finally asks the JP to intervene:

THE COURT: Make sure that there is no interruption whatsoever, okay?

MAN FROM THE BODY OF THE COURT: Your Honour, I haven’t said a word.

THE COURT: Okay.

MAN FROM THE BODY OF THE COURT: Until this officer approached me and threatened me with arresting me.

Trololol! At this point, Mr. Penner pulls away from Cst. Parker who contemporaneously decides to arrest the man for causing a disturbance; Cst. Kosinski assists in this endeavor, and Mr. Penner resists.  As the Court of Appeal describes:

The courtroom “dissolved into pandemonium” as the officers took the Appellant into the hallway and ultimately completed the arrest. The Justice of the Peace fled the courtroom and the court clerk followed, locking the door behind him and calling 911 (para 11)

According to his Statement of Claim, Penner suffered a black eye, a wrist injury, and bruising about his temple. He was charged with causing a disturbance, assault resisting arrest, and breach of probation (these charges were dropped at the request of the Crown later that year).

Following his release, he filed a complaint under the Police Services Act alleging misconduct by the arresting officers.

PROCEEDING #1: Complaints issued against the arresting Constables 

The Niagara Regional Police Services Board held a disciplinary hearing for the two constables, which Mr. Penner participated in through self-representation. He cross-examined witnesses and made legal submissions at the hearing, which was presided over by a retired police superintendent (the hearing officer, or HO). The HO’s decision found both officers not guilty of the disciplinary charges against them.

Central to that case was whether the officers had authority to arrest Mr. Penner without the direction of the presiding Justice of the Peace. The HO decided that the law was unclear on this issue, and that the onus was on the prosecution to prove that the arrest was not authorized by statute, and that they had failed to meet that burden.

Mr. Penner appealed this decision to the Ontario Commission on Police Services, which found the arrest to be unlawful, and any forced used was therefore unjustified. The Commission held that the HO should have decided the question of whether the officers acted beyond their authority. The Constables sought judicial review of this decision to the Superior Court of Justice (Divisional Court). It found the arrest to be lawful, restored the decision of the HO, and insisted that the powers of the police and courts could continue to co-exist, especially in this case where there was no direct contradiction.  Mr. Penner appealed the order on costs, but no further—he had more business to attend to elsewhere.

PROCEEDING #2: Action for civil recovery

While Mr. Penner’s complaint was working its way through the Niagara Police Services Board, he filed a lawsuit against the two arresting officers as well as the court officer, the Chief of Police, and the Regional Municipality of Niagara Regional Police Services Board.

PROCEEDING #2(a): Motion under Rule 21 – Issue Estoppel

Following the news that Mr. Penner would not be appealing the judgment of the Divisional Court (the ultimate outcome of Proceeding #1), the constables advanced a motion under Rule 21 of Ontario’s Rules Civil Procedure to seek determination on a question of law before trial in order to dispose of all or part of the action – namely, whether Mr. Penner’s civil claims could be barred by res judicata.

The motions judge found that Penner’s civil claim brought up the same issues and asked the same questions as the disciplinary hearing, and that the two proceedings involved the same parties. The decision of the Divisional Court was final, as Penner elected not to appeal further. On their face, these facts satisfy the Danyluk test for issue estoppel. Regarding the residual discretion granted to judges in these situations, the motions judge found “that no grounds exist in this specific case for me to exercise my discretion to refuse to give effect to the issue estoppel.”

PROCEEDING #2(b): Appeal of Ruling of Motions Judge to ONCA

Good admin law students know that all factors relevant to the exercise of discretion must be considered (ie/ written down) even if the discretionary measure is not in the end accorded (Danyluk/Minott). This error of omission, writes Laskin JA, means, “[they] are entitled to consider afresh whether to exercise our discretion not to apply issue estoppel” (39).

At this point in these proceedings, Justices Laskin, Moldaver and Armstrong are doing the daily grind, but usually their efforts are couched in less blatant terms: the residual discretion afforded in deciding to apply issue estoppel directs a judge to ask whether it would create some “injustice” to use it.

Here’s how the CA weighed the factors in this case in deciding whether or not to use their discretion not to apply issue estoppel even though technically, it applied (or: the test for its general application had been satisfied):

PRO (exercising discretion to not apply issue estoppel [ie/ “Good Reasons To Not Apply Issue Estoppel”]):

1. Different Purposes: the court concludes that Mr. Penner probably didn’t intend to preclude a civil action by pursuing a police complaint against his arresting officers. The civil courts and the police complaints process are two separate processes with two different purposes.
2. No financial stake: The Police Services Act does not provide for compensation for complainants in successful actions. This weighs against applying issue estoppel, but this is mitigated by the potential for gain, as issue estoppel works both ways. The example the court gives is that if the HO had found the police used unreasonable force, they would have been estopped from saying otherwise in a civil action.

CONS (of exercising discretion to not apply issue estoppel [ie/ “Good Reasons to Apply Issue Estoppel in this Instance”])

1. Expertise of the decision maker: our HO lacks legal training as a retired police superintendent, but he does have the qualifications to determine whether there were reasonable and probable grounds for arrest and whether reasonable force was used during that arrest.
2. Procedures in the disciplinary hearing: these police inquiries are no small effort and carry grave potential consequences. The disciplinary hearing, we are told, “had all the hallmarks of an ordinary civil trial.”  Mr. Penner’s lawyer would make that quote the title of his appellate factum if such a document allowed such titles, so incensed was he about this characterization of the hearing. Still, the ONCA reminded us, witnesses were called, evidence was presented, extensive cross-examination was conducted and concluding statements were given.

One difference between the police complaints process and civil trials is that there are two different standards of proof: “clear and convincing evidence” is needed to ground findings of police misconduct, whereas proof “on a balance of probabilities” is required to satisfy a civil claim. Laskin JA says this isn’t that big of a deal, because the HO’s notes indicate he would have found no misconduct even if the standard had been the civil one. While that may be factually accurate, it sounds distastefully like an argument from the “deprived of procedural justice” side of the tracks in this neighbourhood of jurisprudence, and I look forward to the Court’s response.

1. Mr. Penner’s active participation throughout the police complaints process (as was his entitlement, I anticipate the SCC will remind us), and finally
2. Right of appeal: Mr. Penner’s claims were fully assessed on appeal from the Commission’s decision at the Divisional Court (a decision he did not appeal further).

The Court of Appeal concluded that on weighing these considerations, “applying issue estoppel would not be unfair or unjust.” Therefore, issue estoppel applies, most of Mr. Penner’s civil actions are struck from his claim, and he appeals to the top court in the case that surely wins the title of Most Confusing Procedural History, Ever.

Proceeding #2(c): Appeal to SCC of ONCA decision on Motion’s Judge ruling on Rule 21 Application

In his written submissions before the SCC, Mr. Penner’s lawyer heavily emphasizes the differences between police complaints proceedings and civil trials. The parties aren’t independent: the Chief of Police appoints the prosecutor (a police officer) as well as the hearing officer (read: judge), and that HO is a police superintendent, acting or retired. Beyond their “trappings,” courthouse-like or not, the two proceedings serve very different purposes.

Regarding Mr. Penner’s right to participate in the disciplinary proceedings, the legislature’s intent in allowing and encouraging this was to increase transparency and public confidence in police oversight, not to address the complainant’s civil rights. A complainant who participates in a police disciplinary hearing should not be punished by having to forfeit their right to a civil cause of action. This would seem to defeat the purpose of the complaints process.

It is further argued that the Police Services Act itself is incompatible with the application of issue estoppel, as the language in some sections contemplates civil proceedings.

Finally, it is argued that the CA “failed to take into account the unique role of the judiciary in adjudicating allegations of police misconduct” and in doing so, allowed a retired police officer to usurp the role of the judiciary in administering the rule of law:

“The public’s already minimal confidence in the police complaints system will be substantially eroded if an investigation and adjudication run by the police is relied upon to prohibit recourse to the last vestige of independent police accountability-the Court.” (Appellant’s factum, para 75).

The Respondents are arguing in their factum that the bar is set incredibly high for reviewing discretionary decisions; as they explain, this is only done when the discretion was exercised on a wrong principle of law or where there has been some other massive obvious error.

The Respondents also say that the Appellant is seeking to fundamentally alter the settled law in Canada following the decision in Danyluk, which outlines a test of general application for issue estoppel that is malleable to the specifics of each case. The test in Danyluk (as alluded to above: (1) same question/issue, (2) prior decision must have been final/judicial in nature (3) same parties) seems to have been met, but following Minott v O’Shanter, even then the courts retain the discretion to refuse to apply the doctrine if doing so would create unfairness.

It is argued that the Appellants divert the discretionary analysis away from the particular facts of the case and towards the nature of the tribunal and its role alongside the courts. This appeals to the potential for injustice, rather than actual injustice. In doing this, they miss the central issue of this appeal, which is (as framed by the Respondent), “Would the application of issue estoppel given the particular facts of the Appellant’s case be unfair and unjust?”

Finally, the Constables argue in their factum that the application of issue estoppel in this case accords with the policy reasons underpinning the doctrine of res judicata—that this parallel civil litigation is a collateral attack on a final judicial decision, and that challenging unequivocal findings of fact is also an abuse of process.

Proceedings #0 & #3

We will likely never know whether Mrs. Penner was acquitted for her crime of failing to display valid plates, but we can guess that whatever the outcome, she wishes Mr. Penner had just stayed home that day.

Once this case is decided, the remainder of Mr. Penner’s civil suit will unfold.  The Respondents agree that Mr. Penner’s charges of unlawful strip search and use of defective equipment (handcuffs) survive their Rule 21 motion–the only issue being, ultimately, whether and how judicial discretion should be used to apply issue estoppel in the particulars of this case.

The Supreme Court isn’t being asked what is (in my humble opinion) the most interesting question of this whole saga—whether police officers can arrest members of the public attending court proceedings on their own volition and without the authority of the Justice of the Peace. Who rules the courtroom: the presiding judge? the attending officers? or the man in the back wearing  sunglasses and chewing gum?

The main issue before the SCC in Imperial Tobacco was whether to strike out third-party notice that added the Government of Canada as a third-party to two cases before the courts of British Columbia: British Columbia v. Imperial Tobacco Canada Ltd., 2009 BCCA 540 (“Costs Recovery”) and Knight v. Imperial Tobacco Canada Ltd., 2009 BCCA 541 (“Knight”). In the Costs Recovery case, the Government of British Columbia sought to recover costs for medical treatment of individuals suffering from tobacco-related illnesses, alleging that the tobacco companies failed to warn the public about the risks associated with cigarettes. In the Knight case, a class action was brought against Imperial Tobacco on behalf of class members who purchased “light” or “mild” cigarettes. The class alleged that the tobacco industry misrepresented the levels of tar and nicotine listed on the packages.

Imperial Tobacco pleaded that Canada researched, designed, developed, tested, manufactured, and promoted the “light” and “mild” strains of tobacco at issue in the Knight case, and that it received licensing fees and royalties for the tobacco strains it developed in return. Additionally, Imperial Tobacco alleged that Canada made misrepresentations to consumers and Imperial Tobacco about the relative safety of cigarettes containing the tobacco strains designed by Canada. Accordingly, Imperial Tobacco raised numerous claims against Canada in both cases. For example, the tobacco companies claimed that Canada owes a duty of care to Imperial Tobacco and consumers for negligent design, failure to warn and negligent misrepresentation. The tobacco companies also claimed entitlement to equitable indemnity from Canada; even if Canada is not liable under any of the third-party claims, they claimed entitlement to declaratory relief.

The test to strike out a claim is well established: assuming the facts as pleaded are true, if it is plain and obvious that the pleading discloses no reasonable cause of action, a claim will be struck. The SCC struck out all of the claims against Canada, holding that none of them had a reasonable chance of success. This post focuses on the clarification of the concept of “policy” provided by the SCC.

The crux of the appeal was to differentiate between governmental “policy” and “operational” decisions. Government actors have no duties in negligence with respect to policy decisions, yet they may attract tort liability when they are negligent in carrying out prescribed duties. Policy decisions are exempted from tort liability because the Crown must be free to govern and make policy decisions without becoming subject to tort liability as a result of those decisions. The question then becomes what constitutes a policy decision that is protected from negligence liability? While various courts have addressed this question, the SCC said that the answer remains elusive. The policy/operational approach, albeit the dominant approach in Canada, “does not work very well as a legal test.” Courts have found it notoriously difficult to decide whether a decision falls on the policy or operational side of the line.

After a review of foreign jurisprudence, the SCC made the following three observations: 1) the net of immunity is cast too broadly if all the rational government acts that involve discretion are protected; 2) only “core” policy decisions should be protected from negligence liability; and 3) core policy decision should not be defined as a “non-operational” decision, but should be defined positively as a decision that is grounded in social, economic and political considerations.

Based on these premises, the SCC concluded that “core” policy governmental decisions protected from judicial review are “decisions as to a course or principle of action that are based on public policy consideration, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.” This approach emphasizes positive features of policy decisions, instead of defining the decision negatively as one that is not an “operational” decision. Additionally, it is not a litmus test and the degree of “policy” involved should be taken into account. Furthermore, government actors with the responsibility of formulating a course of action based on social, economic or political factors are likely to be immune.

After the SCC fashioned this clearer policy/operational test, it held that the claims to negligent misrepresentation, failure to warn and negligent design were struck out because they were related to core policy decisions. Assuming that the facts as pleaded were true – Canada falsely represented to consumers and to tobacco companies that low-tar cigarettes were less harmful – Canada developed this public health policy out of concern for the health of Canadians. Additionally, the Minister of Health’s recommendations on warning labels are integral to the policy of encouraging smokers to switch to low-tar cigarettes. Furthermore, even though Canada owed a prima facie duty of care to the tobacco companies when it negligently designed its strains of low-tar tobacco, policy considerations negated this duty because Canada’s decision was based on Canada’s health policy.

Although the SCC restricted government immunity to only “core” policy decisions, it is not enough to hold Canada liable because the government made the decision out of public health policy concerns. Other provinces, including Ontario, also followed the British Columbia model and enacted similar legislations to recover health care costs incurred for treating smoking-related diseases. It will be interesting to see how the tobacco industry will attempt to stretch legal boundaries to delay payments in the years to come.

Recently, the Ontario Court of Appeal (OCA) contributed to this very evolution in Tucows.Com Co. v. Lojas Renner S.A., 2011 ONCA 548, a decision that deemed a company’s domain name to constitute intangible property within the meaning of rule 17.02(a) of the Ontario Rules of Civil Procedure.

This finding, in turn, grounded the jurisdiction of Ontario courts to hear disputes relating to the use of domain names as an alternative forum to international administrative tribunals specifically set up for that purpose. Tucows is significant in that it highlights the ways in which domestic law adapts itself to changes in technology and, a logical corollary, to the greater internationalization of commercial activity that comes with it.

Facts and Judicial History

Tucows, a Canadian company incorporated in Nova Scotia with its principal office in Toronto, uses <Renner.com> to provide personalized e-mail service to clients. It is a registrant with the Internet Corporation for Assigned Names and Numbers (ICANN), an internationally recognized non-profit organization which oversees the central domain name registry system.

In order to become an accredited registrar under this system, Tucows was required to submit to ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) and related Rules. Under these rules, a trademark owner that believes a domain name registration infringes on their trademark may initiate a dispute resolution proceeding by selecting a forum from a list approved by ICANN. Once a dispute is commenced, the domain name holder is required to submit to mandatory administrative proceedings.

Renner, a company that operates department stores in Brazil, commenced dispute resolution proceedings at the World Intellectual Property Organization (WIPO) Arbitration and Mediation Centre (one of the forums approved by ICANN), alleging that the domain name <Renner.com> is identical to its trademark, “Renner.”  The WIPO administrative panel has the authority to order Tucows to de-register the domain name, allowing Renner to register it.

Rather than responding to the complaint, however, Tucows commenced an action in Ontario, requiring the Superior Court to address the preliminary question of whether service of Tucows’ statement of claim on Renner outside of Ontario was valid.

Tucows relied on rule 17.02(a) which entitles a party to serve a statement of claim outside of Ontario without leave “in respect of” real or personal property located in Ontario. In such cases, a rebuttable presumption arises that a real and substantial connection to Ontario exists between the party being served and the courts exercising jurisdiction (see: Van Breda v. Village Resorts Limited, 2010 ONCA 232; SCC heard the appeal earlier this year).

The motions judge set aside the service of the statement of claim on the grounds that a domain name is not ‘personal property’ within the meaning of rule 17.02(a) and “being intangible property, it is not property located in Ontario.” In line with the framework for judicial review of domestic administrative decision-makers, the motions judge found that WIPO was a specialized tribunal with expertise in the relevant subject area, requiring courts to exercise deference. Thus, the jurisdiction of the court should only be engaged to review a WIPO decision after one has been rendered.

Decision and Implications

Deference to International Administrators?

The Court of Appeal reversed the Superior Court’s deferential posture on the basis that the UDRP rules, despite the requirement of a mandatory administrative process, “contemplate the possibility of litigation before domestic courts” and thus are to be perceived as an alternative mode of dispute resolution, not a viable substitute.

The Court of Appeal pointed out that WIPO’s area of expertise is in the realm of “abusive” registrations and thus standard practice is to refer “legitimate” registration cases to domestic courts. Further, the tribunal’s online procedure does not allow for discovery or, in the vast majority of cases, live testimony and thus constitutes a process of “adjudication lite.”

Domain Name as Personal Property?

Turning to approaches towards domain names in the United States, Britain, and India, the court concluded that domain names constitute personal property for purposes of rule 17.02(a). This approach appears to be the logical extension of jurisprudence which deems other types of intellectual property, such as patents, to constitute property under rule 17.

Given that domain names are easy to remember and to associate with a particular business, they contribute to the forging of identities in the commercial context; these identities, in turn, begin to hold real value on the market.

Although a domain name is a form of contractual license, the extension of a property rights paradigm nonetheless captures—and protects—the way that domain names are used and valued in the real world. This reasoning is in line with the Supreme Court of Canada’s approach to the ‘bundle of rights’ associated with certain licensing arrangements in Saulnier v. Royal Bank of Canada, 2008 SCC 58. In that case, the majority found that since a fishing license entails rights of exclusive fishing under certain conditions and “a proprietary right in the fish harvested and the earnings from sale… the license unlocked the value in the fisherman’s other marine assets.”

By analogy, a domain name similarly entails rights of exclusive use and a proprietary entitlement to the value of a business identity. Thus, the Court of Appeal noted that “if the domain name were to be transferred to Renner, it would undoubtedly assist in unlocking the value of Renner’s business.”

Domain Name Located in Ontario?

The final stage of the rule 17.02(a) analysis was to determine whether domain names are personal property located in Ontario. Applying the “connection factors” test laid out by the Supreme Court in Williams v. Canada [1992] 1 SCR 877, the Court of Appeal found that <renner.com> had its maximum contacts within Ontario because the registrar of the domain name was located in the province.

The emphasis placed on the location of the registrar/administrator is logical given the issue of enforceability; historically, the jurisprudence concerning extraterritorial service was undermined by a disjuncture between assumptions of jurisdiction by the courts and their ability to ensure compliance with their judgments. Finally, since the presumption of a real and substantial connection to Ontario had not been rebutted by Renner, Tucows’ service ex juris was validated by the Court of Appeal.

The effect of the case, then, was to expand the scope of the legal conception of property while simultaneously trimming the role of specialized international administrators. The circumvention of the UDRP arbitration and mediation process is troubling both because it is tailored to deal with disputes relating to domain names and because of its inherent international nature. First, the WIPO administrative mechanism involves experts in intellectual property and a less-costly, streamlined process. Second, its international nature and reach may, in certain cases, align more closely with the extraterritorial nature of domain name disputes.

Further, to the degree that a shrinking of international administrative jurisdiction necessitated the expansion of domestic jurisdiction over such matters (i.e.  by invoking a nuanced conception of personal property) in order to ensure disputes over domain names do not go unheard and unresolved, the Court of Appeal’s expansion of the property concept may have spillover effects into other areas of the law. This is not to say that such expansion is discordant with the economic reality of domain names in today’s society, but simply that the exact implications and ramifications of the finding will still need to be worked out.

The challenge for courts when dealing with such international administrative tribunals—the legitimacy of which is underpinned by individual contractual relations and not the principle of legislative supremacy, as is the case with domestic administrative decision-makers—is to strike a balance between the need for deference to expertise and international capacity while ensuring that inadequate processes are not insulated from domestic jurisdiction.

Perhaps most importantly, this case highlights the troubling schism that may arise between the international dimension of technological disputes and the international legal infrastructure that exists to resolve them; in such cases, it falls on domestic courts to calibrate old legal concepts, such as those of property, to better accord with new circumstances. Or, in other words, to better accord with “the purposes which society or the dominant classes in society expect the institution of property to serve.”

Background and Facts

The facts were undisputed: Seidel signed a cell phone contract with TELUS and she was being charged for connection time and ring time instead of just the actual talking time. Outraged by the extra charge of “non-use” time, Seidel claimed that TELUS engaged in deceptive and unconscionable practices contrary to the British Columbia Business Practices and Consumer Protection Act (“BPCPA”). She also sought certification to act as a representative of a class of allegedly overcharged customers under the Class Proceedings Act (“CPA”).

The roadblock here was the contract Seidel signed with TELUS – it contained an arbitration clause that stripped her right to sue TELUS. Not only did the clause dictate that any dispute is to be “determined by private, confidential and binding arbitration”, but it also said that “by so agreeing, [the signatories] waive any right [they] may have to commence or participate in any class action against TELUS”.

Relying on this contractual clause, TELUS applied for a stay of proceedings, pursuant to s. 15 of the Commercial Arbitration Act. The B.C. Court of Appeal stayed Seidel’s action in reliance on Dell Computer Corp. v. Union des consommateurs et al., 2007 SCC 34 (“Dell”) and Rogers Wireless Inc. v. Muroff, 2007 SCC 35 (“Rogers”) (see excellent commentaries on these cases here and here), which held that the plaintiff was bound by the arbitration clause contained in the contract.

Seidel argued that the arbitration clause and class action waiver were unconscionable in light of s. 172 of the BPCPA, which provides that “a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action, may bring an action in Supreme Court” to enforce the statute’s consumer protection standards.

The main issue before the SCC was whether s.172 of the BPCPA could override the arbitration clause and class action waiver in a consumer contract, and whether Seidel could proceed by way of class action or only on an individual basis.

Majority Says No to Private and Confidential Arbitrations

Justice Binnie, who wrote the decision for the majority, decided that private arbitration is antithetical to the legislative intent of s. 172 of the BPCPA and ruled that s. 172 trumps the arbitration clause in a standard consumer contract for mobile phone services.

First, he emphasized that the Court must interpret s. 172 of the BPCPA “textually, contextually and purposively, and should be interpreted generously in favour of consumers, as the BPCPA is all about consumer protection.” The fact that s. 172 says that anyone, including those unaffected by the consumer transaction, can initiate this claim suggests that the provision provides for a public interest remedy available to anyone who wants to expose deceitful corporate conduct. He also commented that, even though arbitrators are given broad remedial power, they are still bound to ensure a “private and confidential arbitration”—any disputes would be kept out of the public’s ear, and no precedent would be created for future arbitrations raising similar complaints. This confidential nature is detrimental to the effectiveness of the public interest remedy as provided by s. 172 of the BPCPA. Therefore, the majority ruled that s. 172 of the BPCPA could not be waived by an arbitration clause in a contract, and, therefore, Seidel could assert her s. 172 right before the Supreme Court of British Columbia.

The majority also held that Seidel is not contractually barred from seeking certification of her s. 172 claims as a class action. The explanation here was rather cursory. Justice Binnie wrote that, because the class action waiver was structured internally under the heading “Arbitration” in the contract, the waiver was dependent on the arbitration provisions which had already been rendered invalid by the Court. However, he also declared that, even if there was ambiguity in the arbitration clause, it should still be resolved in favour of Seidel because of the principles of contra proferentem —“whoever holds the pen [that] creates the ambiguity must live with the consequences.” Accordingly,  Seidel could pursue the certification proceedings.

It is important to note that this case was decided against the backdrop of Dell and Roger, where the SCC rejected consumers’ attempts to pursue class actions in disputes arising out of sales contracts with embedded arbitration clauses in Quebec. Here, Justice Binnie circumscribed the ambit of these prior SCC decisions by holding that those cases were specific to Quebec’s civil justice system and would not be in conflict with the current decision. Furthermore, the Quebec legislature at that time did not have provision similar to s. 172 of the BPCPA. Thus, Dell and Rogers enforced arbitration clauses in standard form contracts since there was no legislative language to suggest otherwise.

Dissent Says Yes to Arbitration Clause

The dissent, penned by Justices LeBel and Deschamps, vehemently criticized Justice Binnie’s “hostility towards arbitration”, and that his interpretation of arbitration was “an inexplicable throwback to a time when courts monopolized decision making and arbitrators were treated as second-class adjudicators.” They defended arbitration as “an efficient and effective access to justice mechanism”, and that solving a consumer dispute by arbitration is “entirely consistent with the important public purposes of protecting consumers, vindicating their rights and promoting access to justice.” They believed that, unless the legislature clearly intended to exclude arbitration for this particular kind of dispute, a consumer claim that could proceed by way of arbitration should first be submitted to arbitration.

In response to these criticisms, Justice Binnie rebutted: “My colleagues LeBel and Deschamps JJ. attempt to cast the appeal in terms of whether or not arbitrators should be seen as `second-class adjudicators’ and paint those with whom they disagree as exhibiting `an undercurrent of hostility toward arbitration.’ Respectfully, I believe the court’s job is neither to promote nor detract from private and confidential arbitration. The court’s job is to give effect to the intent of the legislature as manifested in the provisions of its statutes.”

Ontario and Quebec Legislatures Both Inhibit Arbitration Clauses in Consumer Contracts

Even though the SCC had upheld the enforceability of arbitration clauses in Dell and Rogers, many provincial legislatures have enacted laws to invalidate clauses that would prevent consumers from pursuing class proceedings. Ontario and Quebec (after the Dell and Rogers decisions) have both prohibited arbitration clauses in consumer contracts, and Alberta requires ministerial approval to include such clauses in standard form contract. Clearly, the legislatures recognized that the arbitration process might inadvertently deliver injustice to individual consumers when battling wealthy corporations.

While arbitration is meant to curtail costs and delay, commercial arbitrators still cost $4,000-$7,000 per day – a value that is going to be considerably greater than the value of an overcharged phone bill of an individual customer. Furthermore, as suggested by Professor Susan Drummond, the arbitrator might have an incentive to rule against the consumer because repeat offender (most likely TELUS) will hire its own “competent” arbitrator for such private and confidential resolution. As relief by arbitration will never generate the notoriety and public denunciation that could be achieved by court action, other individual consumers would continue to be victims of unconscionable business practices.

When large corporations are inflicting small amount of damage on a large number of people who cannot afford to litigate individual claims, class action might be the only way to serve judicial economy and afford greater access to justice. It would also serve efficiency and justice by ensuring the corporations modify their behaviour and take full account of the harm they are causing their customers. After this victory at the SCC, Seidel can now move forward to have the Court certify the class proceeding.  Unless a class action is allowed, the deterrent function of the law will be lost.

Putting the Cart Before the Horse, or Elephant?

Both the chambers judge and the majority of the bench on the Alberta Court of Appeal skirted around the issue of standing, specifically whether Zoocheck Canada and PETA, the applicants, had public interest standing to seek a court declaration in the case. Rather than beginning with standing, the lower court and the majority of the appeals court began with an assessment of whether the originating process could be considered an abuse of process. If it could, then the pleadings would be struck and the case dismissed. And that was precisely what happened:

The chambers judge struck the originating notice on the basis that it constituted an abuse of process. He found that he did not need to address the issue of public interest standing in any detail… By seeking a declaration that the City was in contravention of the Act in a civil proceeding, the appellants were attempting to enforce the criminal law privately. In his view, this was not permitted absent a private interest in the proceedings, and he determined that the appellants had none.

Methodologically, this is completely flawed, according to Chief Justice Fraser. Determining whether the applicants have public interest standing was the “central” task before the court. In some cases, a lack of standing amounted to an abuse of process or, for that matter, no reasonable cause of action. However, a finding of abuse of process cannot be used to deny standing. “This is putting the cart before the horse,” Justice Fraser summarizes.

Public Interest Standing

Even before the Charter, the Supreme Court had expanded the rules for public interest standing to permit constitutional challenges to government legislation in a trilogy of cases - Thorson v. Attorney General of Canada, [1975] 1 SCR 138, Nova Scotia Board of Censors v. McNeil, [1976] 2 SCR 265, and Canada (Minister of Justice) v. Borowski, [1981] 1 SCR 575. This trilogy created a three-part public interest standing test: (1) Is there a serious issue raised about the limits of administrative of statutory authority or the invalidity of legislation? (2) Does the plaintiff have a genuine interest in the issue? And (3) Is there another reasonable and effective way to bring the issue before court?

Before the chambers judge, the City essentially conceded the first two parts of the test. Regarding the first part of the test, the City’s challenged actions did indeed constitute an exercise of administrative authority. Moreover, it cannot be denied that the issue of the limit of the City’s authority is serious. Our government’s compliance with the law is key to proper democratic governance.

There is also no doubt that the applicants, Zoocheck and PETA, have a genuine interest in the well-being of the lone elephant in the Edmonton zoo. Both are organizations that are devoted to the protection of animals and that have taken a special interest in Lucy’s care in particular.

This test, therefore, hinges on the third part: is there another reasonable and effective way to bring the issue before the court? Chief Justice Fraser argues that the issue – whether a civil declaratory judgment is available against the City based on its alleged unlawful conduct in its treatment of Lucy the elephant – warrants only one consideration: can the challenged conduct be subject to attack by a private litigant? The courts reason that they should have the benefit of the contending views of the persons most directly affected by the issue. It does not come down to whether the Attorney General can prosecute the City for an offence under the Act or whether the existence of that option bars a civil action against the City. This is what her colleagues focused on — mistakenly — in their decision. They enumerated other avenues that Zookeeper and PETA could have taken that would not have warranted a court declaration. In the opinion of Chief Justice Fraser, this was wholly misguided.

The final point that Chief Justice Fraser makes in her dissent is important. By applying the three-part test for public interest standing, she was able to determine that the appellants should have been granted standing. However, even if she were wrong in making a preliminary determination on this issue at this stage, it is apparent – at the very least – that the present case was not one in which standing could be denied summarily. As Chief Justice Fraser had already noted earlier, a hearing with full evidence, argument and deliberation would have been the only way to resolve the issue of public interest standing.

Abuse of Process

Even though Chief Justice Fraser details a list of woes and errors with her colleagues’ legal reasoning, it is not productive to summarize each of them here. Rather, we will target the issue of abuse of process. By concluding that the applicants were trying to act as private prosecutors, which would be an abuse of process, the chambers judge struck the pleadings. This is why Lucy never got her day in court.

The leading case on this issue is Toronto (City) v. CUPE (Local 79), 2003 SCC 63, which states that an abuse of process is within the court’s inherent jurisdiction to stay actions that are “unfair to the point that they are contrary to the interest of justice.”

Instead of assessing the “interest of justice” – the integrity of the adjudicative process, for example – the chambers judge seemed to assessing whether the civil proceeding was the proper way to bring issues of Lucy’s treatment at the zoo before the court. This could be inferred from the chambers judge’s statement that the “real and substantive issue in this application is whether a proceeding before the Court for a declaration is the correct procedure to seek a remedy for the harm alleged to Lucy.” In fact, according to Chief Justice Fraser, the chambers judge appeared to have confused two tests – that for abuse of process and that for public interest standing. A consideration of whether there was another reasonable and effective way to bring the issue of “harm alleged to Lucy” before the court really falls under the third part of the test for public interest standing, as noted above. (The trial judge also erred in assuming that there is only one correct procedure and that others must be improper.)

The real test for abuse of process, as the dissenting judgment clearly explains, is the plain and obvious test: is it plain and obvious that allowing the appellants’ action to continue would be contrary to the interests of justice? After applying the test, Chief Justice Fraser conludes, “Whether the appellants can pursue and secure a declaratory judgment against the City based on its alleged unlawful conduct in its treatment of Lucy remains an arguable issue.” It is an issue that cannot be resolved without hearing the full evidence and without the full force of the adversarial process.

The Bigger Picture

It is clear from her dissent that Chief Justice Fraser is more perturbed by the larger implications of the decision than by the misapplication and misunderstanding of legal principles by her colleagues. From the outset, she makes it clear that this is not simply a case about civil procedure. Rather, she reminds us that we cannot forget the bigger picture: it is a case about an elephant in a city-run zoo, the government’s responsibility to the elephant in the zoo and our relationship to animals more generally.

She begins her lengthy dissent by painting a picture of the current state of animal protection laws at the federal and provincial levels. It is worthy to note that she includes proposals for reform of these animal welfare laws, reminding us that much work still needs to be done in the area of animal “rights” in Canada. Because the protection accorded to animals from these laws is so limited, “courts should not diminish the full import of animal protection laws by creating unnecessary barriers to those seeking to ensure compliance with them.” Furthermore, the inability of animals to speak for themselves and commence lawsuits makes it even more important for courts to “take a generous, not impoverished, approach to the grant of public interest standing for those attempting to enforce the restrictive animal rights that do exist.” This point is repeated several times in the dissent: since “animals cannot tell someone what has happened to them,” we need to encourage those who are invested in what has happened, and likely is happening, to these animals to give them a voice and to stand up for them. Keeping in mind the precarious position of animals in society, we, as “a civilized society [should] show reasonable regard for vulnerable animals, at least to the degree defined by the [Alberta] Legislature… Then should there not be some effective means of vindication of such laws as exist?”

So, we must now turn those “means of vindication of such [animal rights] laws as exist.” In this case, the City of Edmonton insisted that civil procedure would not be one of those means. It seems natural that the City would be opposed to a civil court, preferring the proof beyond reasonable doubt standard of the criminal courts instead. The City claimed that civil proceedings on these grounds would deprive it of its full Charter rights. However, the purpose of the Charter is premised on the assumption that the state wields substantial powers over its citizens. It is designed for the protection of the people from the state – not the other way around, and certainly not from civil proceedings. So, the claim that the City should be subject only to a prosecution under the Act is really doubling up the power of the municipal government, according to Chief Justice Fraser.

Rather than assessing the best way for us to intervene to protect animals from abuse in the hands of the government, the chambers judge should have asked whether it would be sufficient that the appellants prove – on a civil balance of probabilities – that the City was failing to comply with its obligations to Lucy. And why could this intervention not be achieved through a civil action? These questions are more pressing, in Chief Justice Fraser’s opinion.

The City claims it has so much to lose if it were called on to answer in the civil, not criminal, courts for its actions against Lucy. As Chief Justice Fraser poignantly reminds us though, “This case is not about what the City might possibly lose; it is about the people in a democracy, and the animals they seek to protect, and what they will certainly lose if citizens have no effective way to enjoin a government’s unlawful conduct.”

By drawing this conclusion, the majority of the Court sidestepped the evidence related to Lucy’s inhumane treatment at the zoo as well as the issue of whether the appellants were entitled to standing. That was not regarded favourably by Chief Justice Fraser, who pens a charged dissent in this case. Chief Justice Fraser’s dissent takes up important issues, such as standing, and, more importantly, reminds us that this case is not merely about civil procedure: “Lucy’s case raises serious issues not only about how society treats sentient animals… but also about the right of the people in a democracy to ensure that the government itself is not above the law.”

Facts:

The issue before the Court was essentially whether the appellants, Zoocheck Canada and People for the Ethical Treatment of Animals (PETA), were entitled to seek a declaration that the respondent City is in breach of the Animal Protection Act, RSA 2000, c A-41.

The appellants are organizations that have had a long-standing concern about the welfare of animals. They had pushed for Lucy’s removal from the Edmonton zoo for numerous reasons: they attributed her serious health problems (from her foot injuries to her obesity) to Edmonton’s inhospitable weather and her isolation at the zoo. As social animals, elephants such as Lucy need to live with other elephants and are accustomed to much more temperate climates (15 to 35 degrees Celsius).

On February 1, 2010, the appellants commenced an action by originating notice for an order, “Declaring that the City of Edmonton is in violation of section 2 of the Animal Protection Act.” The application was supported by a number of affidavits, including affidavits from veterinarians.

The relevant parts of the Act are as follows:

1(2) For the purposes of this Act, an animal is in distress if it is

(a) deprived of adequate shelter, ventilation, space, food, water or veterinary care or reasonable protection from injurious heat or cold,

(b) injured, sick, in pain or suffering, or

(c) abused or subjected to undue hardship, privation or neglect.

2(1) No person shall cause or permit an animal of which the person is the owner or the person in charge to be or to continue to be in distress.

(1.1) No person shall cause an animal to be in distress.

(2) This section does not apply if the distress results from an activity carried on in accordance with the regulations or in accordance with reasonable and generally accepted practices of animal care, management, husbandry, hunting, fishing, trapping, pest control or slaughter.

…

12(1) A person who contravenes this Act or the regulations is guilty of an offence and liable to a fine of not more than $20,000.

(2) If the owner of an animal is found guilty of an offence under section 2, the Court may make an order restraining the owner from continuing to have custody of an animal for a period of time specified by the Court.

While the Act does not create rights in animals, but it does restrict and control the activities of persons in interaction with animals.

The respondent, the City of Edmonton, brought an application to have the originating notice struck out on the basis that the applicants had no standing, that the proceedings were an abuse of process, or alternatively that the appellants had chosen the wrong procedure. As a result of the nature of the application to strike, the City did not file any affidavits to rebut those of the appellants, even though it disputed the factual basis of the application.

Procedural history

The lower level court granted the application from the City, striking out the originating notice. The chambers judge declared that the proceedings were an abuse of process; a private litigant could not seek a declaration that the respondent was in breach of a penal provision in a statute. By seeking a declaration that the City was in contravention of the Act in a civil proceeding, the appellants were attempting to enforce the criminal law privately. In the chamber judge’s view, this was not permitted absent a private interest in the proceedings, and he determined that the appellants had none.

Moreover, the chambers judge concluded that the application should have been brought by way of statement of claim, not originating notice.

Issues on Appeal

The two issues identified on appeal were:

1. Did the chambers judge err in denying the applicants standing to seek a declaration?
2. Did the chambers judge err in concluding that the proceedings were an abuse of process?

Justice Slatter wrote the majority reasons for judgment, with Justice Costigan concurring. The third and last person on the bench was Chief Justice Fraser, who dissented in this case.

Abuse of Process

While Justice Slatter singled out these two issues, as noted above, he devoted most of his attention to the second question of whether the judge erred in concluding that the proceedings were an abuse of process.

A leading case for abuse of process, which falls under the doctrine of issue estoppel and res judicata, is R. v. Scott, [1990] 3 SCR 979, where the Court laid down the test:

… Abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice (1007).

The most curious part about the entire judgment is the majority’s handling of the Scott test. Although the test is cited directly, Justice Slatter seemed to skirt around it: “Just because a particular proceeding does not fit into a particular authoritative recitation of the test for abuse of process does not mean that no abuse is present. Procedures that can “bring the administration of justice into disrepute” can take many forms.” Without any further explanation as to why the Scott test would be inappropriate for the case at hand, or elaboration on how the trying of the case at hand would “bring the administration of justice into disrepute,” Justice Slatter swiftly moved on.

Awkwardly, the majority turned to the categories in which cases on abuse of process tend to fall next: re-litigation of settled issues, fairness of trial procedures, delay in proceedings, etc. Justice Slatter pointed to one category of abuse of process, namely proceedings used to enforce or engage punitive penal statutes, other than by charging the party allegedly responsible with the applicable offence. “Sometimes the court reaches that result [abuse of process] by finding that the applicant has no standing to apply for the requested relief,” Justice Slatter stated.

He continued: “The law has long recognized a limited ability to grant equitable or declaratory relief to a private litigant respecting a public wrong, provided that the applicant has also suffered some private wrong” (Gouriet v. Union of Post Office Workers, 1978 AC 435). The central principle of Gouriet is that the applicant must have some private interest in addition to any public interest.

While caselaw has since eased the test for standing in public law matters, Slatter noted that, “none of the leading cases on standing involves an attempt to obtain a declaration that a particular respondent was in violation of a penal statute.”

Much like his treatment of Scott, Justice Slatter failed to really engage with the leading cases he cited. Specifically, Justice Slatter failed to investigate whether PETA and Zoocheck fit the principle from Gouriet – whether they have some private interest, in addition to any public interest, in Lucy’s well-being at the zoo.

Instead, Justice Slatter focused on why the courts are reluctant to grant a declaration when someone is in breach of a penal statute or other similar civil remedies. In his opinion, one compelling reason is that the burden of proof in civil proceedings is on a balance of probabilities, whereas the burden of proof in penal regulatory proceedings is proof beyond a reasonable doubt. Therefore, “the presumption of innocence in penal proceedings is lost or undermined in a declaratory action.”

The rest of the majority decision concerned other remedies available to the appellants, besides penal proceedings. For example, the applicants could file further complaints to the Edmonton Humane Society or alternatively bring the issue to the Attorney General. Justice Slatter was not convinced that the applicant’s claim should be heard by the superior courts: “It is not appropriate to expect the courts to take over the animal husbandry of the animals at the City zoo through the ability to issue declarations on points of law.”

It is not difficult to understand why Chief Justice Fraser charged Justices Slatter and Costigan with myopic reasoning in her dissent. Certainly there were other avenues for the applicants could have taken; but how does the majority decision re-imagine and re-configure the relationship between citizens and the government, specifically the right of citizens to mount a challenge to unlawful government conduct? She goes so far as to pronounce that it is “contrary to the rule of law to suggest that citizens are without a remedy. It is a central role of the courts to assure the legality of government action.”

Regardless, the majority of the bench came to the conclusion that, “the chambers judge came to the correct conclusion that these proceedings are an abuse of process.” And, in light of the conclusion about abuse of process, it would not be necessary to decide whether the appellants were entitled to standing nor whether the form of procedure used by the applicants could be appropriately amended.

To be Continued…

The reasons for judgment of Justice Slatter definitely leave something to be desired. In the next post, TheCourt.ca will unpack Chief Justice Fraser’s strongly worded dissent in this case. The dissent does more than sharply criticize the reasoning employed by the majority of the Court. It aptly places the case within a larger context of animal rights and constitutional democracy. Could the government really be immunized from judicial scrutiny of alleged unlawful acts, she – and we – ask?

The overarching issue at the federal district court and the Ninth Circuit Court of Appeals was whether the plaintiffs could be certified as a class action under Rule 23 of the Federal Rules of Civil Procedure. Rule 23(a) in particular states that a district court may certify a class only if:

(1) the class is so numerous that joinder of all members is impracticable,

(2) there are questions of law or fact common to the class ["commonality"],

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ["typicality"]; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Last April, in Dukes v. Wal-Mart Stores, 603 F.3d 571 (PDF), the Ninth Circuit released a controversial, 6-5 split decision in which the majority affirmed the district court’s certification of the action as a Rule 23(b)(2) class, a result the dissent vociferously opposed.  The tension on the split bench was palpable. In a pithy concurring statement, Judge Susan P. Graber wrote,

If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members.

In his concurring dissent, Chief Judge Alex Kozinski immediately shot back,

Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers… They have little in common but their sex and this lawsuit.

The Agenda

In accepting certiorari, SCOTUS asked the parties to prepare arguments addressing two main questions:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its terms is limited to injunctive or corresponding declaratory relief – and, if so, under what circumstances.

II. Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).

Question I pertains to whether the Ninth Circuit erred in ruling that the plaintiffs, who were seeking monetary relief in the form of back pay, could be certified as a class under Rule 23(b)(2), the issue I find to be less scintillating.  The more interesting problem is rooted in Question II and, in particular, the Rule 23(a) challenges of establishing commonality and typicality in a proposed class that is both numerous and diverse.

Searching For Common Ground… Among 500,000

Betty Dukes does not have it easy.  Her proposed class action is marred by practical challenges in addition to legal ones, including the sheer size of the group, its manageability and the anticipated implementation of the trial itself.

Furthermore, she would have to disprove the dissent’s contention that the plaintiffs had failed to provide “significant proof” that all the members of the proposed class were affected by a company-wide discriminatory policy or practice.

The “significant proof” requirement was itself a disputed point in the Ninth Circuit judgment.  While the majority held that the plaintiffs merely had to show a common policy alleged to be discriminatory, the dissent maintained that they needed to adduce “significant proof” that the company policy was discriminatory.  The dissent extracted the “significant proof” requirement from General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982) (“Falcon“), in which the U.S. Supreme Court wrote, in a footnote,

Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants [for employment] and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision making processes.

Although the dissent’s “significant proof” requirement inference is perceivable, it will certainly be helpful for SCOTUS to clarify the meaning of its statement.  It seems difficult to conceive that all plaintiffs attempting to certify a class action based on a general company policy of discrimination – no matter what the size – would be required to provide “significant proof” of policy bias.  As noted by the majority, the common law has traditionally segregated the certification stage from the trial stage, during which “significant proof” of actual discrimination would appear to be more relevant.  It is also important to keep in mind that the proposed class in Falcon was much more exacting because the sole plaintiff sought to represent both employees and potential employees (applicants).  SCOTUS will have to clarify whether it really intended to place such an evidentiary burden on all future employment class actions.

The dissent also took issue with the evidence presented by the plaintiffs’ expert witnesses.  A professor of sociology had concluded from a social framework analysis that Wal-Mart’s centralized organizational culture and weak equal employment policies made those policies and practices vulnerable to gender bias.  Wal-Mart and the dissent immediately challenged the expert’s methodology, questioning its scientific validity.  The plaintiffs’ statistician also ran regression analyses across 41 regions, concluding that there were widespread, statistically significant disparities between male and female Wal-Mart employees in terms of pay and promotions.  The dissent argued that the store-by-store analysis conducted by the defendant’s expert would have been more appropriate in examining the way company-wide policies actually influenced the practices of individual stores.

Therefore, SCOTUS will be looking to define the relevance of the merits of a claim in class certification hearings and to weigh the specific evidence the plaintiffs adduced in this case.

Would Betty Dukes succeed in Canada?

If Betty Dukes were to attempt to certify her class action in Ontario, her application would proceed under s. 5(1) of the Class Proceedings Act.  Would she succeed?

(a) Is there a reasonable cause of action?

I would say Betty Dukes’ claim of employer discrimination is a reasonable cause of action.  Anyone object?

(b) Is there an identifiable class?

The proposed class would include all women who were in the past, or at present, employed by Wal-Mart in Canada and subjected to the retailer’s pay and promotion policies.  Though far from narrowly defined, this appears to be, at least, an identifiable class that would not be determined based on the merits of the action.

(c) Do the claims of the class members raise a common issue? (commonality)

Here’s the caveat.  According to Hollick v. Toronto (City), [2001] 3 S.C.R. 158, an issue will be common only where its resolution is necessary to the resolution of each class member’s claim.  Here, the issue would be whether Wal-Mart’s company-wide pay and promotion policies and practices are discriminatory against its female employees.  While its resolution would certainly be substantial to each member’s claim (in fact, it could be decisive), it is likely not necessary to proving individual claims, particularly if those claims are more relevant to the discriminatory practices of specific stores.

(d) Would a class action be the “preferable procedure,” considering judicial economy, access to justice, and modification of the defendant’s behaviour?

In terms of judicial economy, if it is found that Wal-Mart does have company-wide discriminatory policies, then all the class members would be entitled to some form of relief and there would be no need to establish whether each member had individually experienced discriminatory treatment.  However, each class member may have been affected by the discriminatory practice in a different way and individual claims would have to be assessed to determine the type of relief required, be it an injunctive remedy or back pay.  That said, I see this more as an administrative rather than a legal challenge.   The class action is a means of legal recourse that would likely be extremely costly and inaccessible if pursued by the individual members.  Furthermore, if the claim were successful, there is no question that Wal-Mart would be immediately required to rectify its corporate policies.

(e)(i) Would the plaintiff representatives fairly and adequately represent the interests of the class? (typicality)

Only one of the six plaintiffs held a Wal-Mart management position and the plaintiffs are not representative of all the geographic regions included in the class.  However, if a discriminatory company-wide policy did exist, all the class members would likely have faced similar gender bias, so the plaintiffs could fairly and adequately represent all the members to that extent.  Moreover, Ontario does allow automatic class members to opt out of the action, a key difference between Canada and the United States, where courts have traditionally held that members cannot opt out of Rule 23(b)(2) classes.

No Longer Just a Class Action

Would Betty Dukes succeed in certifying her class action in Ontario?  It seems unlikely.  Her most challenging obstacle would be the issue of commonality, which hinges on the strength of the company-wide discriminatory policy argument.  The resolution of the latter might not be necessary to individual class member claims, but its success would be critical to them.  Class certification would become increasingly dependent on the merits of the action itself, an approach Canadian courts have cautiously avoided.

And that’s what has happened to the Dukes case.  Indeed, the commonality and typicality issues have been so closely tied to the allegation of company-wide gender bias that in determining whether to certify Betty Dukes’ proposed class, SCOTUS will inextricably be – whether expressly stated or not – deciding on the merits of her claim.  And, with SCOTUS’ notorious record of reversing Ninth Circuit rulings, it is rather disheartening to predict that Goliath may win this round.  Wouldn’t it be a vision to see the U.S. Supreme Court defy all expectations and set a new precedent to drive one home for the 60-year-old, former Wal-Mart greeter, Betty Dukes.

Update: On June 20, 2011, the U.S. Supreme Court unanimously rejected the plaintiffs’ application for class certification. The Court split with respect to whether a class claiming discrimination was required to show that the employer had operated under “a general policy of discrimination.” The majority, led by Justice Scalia, held that it did. The dissent, led by Justice Ginsburg, argued that it did not. The full judgment can be found here.

The latest development in the David and Goliath saga that is The Canadian Government v. Alan N. Young is as intriguing as always, yet also somewhat disheartening.

It pits Osgoode’s venerable criminal law professor in his role as Co-Founder/Director of the Innocence Project, an organization that engages law students in the investigation of suspected wrongful convictions, against an overburdened judicial system struggling to keep its head above water and shedding weight to stay afloat.

In the middle of it all is Amina Chaudhary, the second woman in Canada to be convicted of first-degree murder since capital punishment was abolished in 1976 [From here - read the article only if you dare, it’s Christie Blatchford at her absolute nastiest, circa 1999].

Ms. Chaudhary may still have her life, but it’s certainly been a long one behind bars for a crime some say she didn’t commit.  And now, some twenty years after she was sentenced, the Innocence Project claims autopsy photos of the deceased may help exonerate their client. But, here’s the rub – these photos have been lost; and, for all intents and purposes, they no longer exist.

After discovering that this evidence relevant to her case had been misplaced, Mrs. Chaudhary filed an application under Rule 14.05(3)(g.1) (FYI, this is the same rule relied on in Bedford – only they were seeking declaratory orders, and here the relief sought is Charter remedy). The application states:

… [I]t is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms that upon conviction for an offence prosecuted as an indictable offence all evidence and exhibits pertaining to the case be preserved for the lifetime of the offender, unless (1) the offender waives this requirement, or (2) a Court Order is obtained, upon notice to the accused, allowing for the destruction of any or all of the evidence.

The federal and Ontario AGs brought a motion to strike this motion for application on the grounds that it does not disclose a reasonable cause of action. That motion was granted, and Ms. Chaudhary’s application was struck with leave to amend as recommended by Justice Belobaba.

On its proverbial hands, the Department of Justice should see the stain of a woman who has steadfastly maintained her innocence while earning three degrees behind bars, and a photo that may prove she’s been telling the truth, but can no longer be found. Why would they not do anything possible to remove this mark? The price Alan Young put forward for this crime against the people has been deemed unreasonably high. They’ll let the lady rot – for now.

What’s done, is done: some background facts

In 1984, Amina Chaudhary was convicted of the first-degree murder of her ex-lover’s eight-year-old nephew.  Her appeals were unsuccessful, but she has always maintained her innocence. She says she was so convinced the Crown could not convict her that she turned down a plea-bargain offer of accessory to murder, which would have carried a sentence of just 18 months.

Professor Young is quoted here remarking on the strangeness of this offer. He hypothesizes the offer indicated the Crown suspected someone else may have been involved in the murder of the young boy, Rajesh, who was physically subdued and then strangled.

Why would the Crown suspect someone else was present? That relates both to the respondent’s insistence of her innocence and to the recent scandal regarding the lost autopsy photos. Two years before the death of Rajesh, Mrs. Chaudhary fell victim to a brutal machete attack at the hands of her brother. Her arms and chest were so badly maimed that afterwards, she claimed, she could hardly dress herself – let alone beat a boy unconscious or drag his body across a parking lot.

The Innocence Project recently put forward the claim that certain autopsy photos depicting bruising around the deceased’s head might prove “vital” on the application for ministerial review of the case, as authorized by s. 696 of the Criminal Code. Those photos were not adduced at trial, and were not admitted into evidence. After an extensive search of the Crown Law Criminal Office, it has been admitted that the photos are lost.

The judge notes that the retention of evidence is not uniform in Canada, or even in Ontario. The Toronto Bylaw 689-2000 sets out a detailed retention schedule, generally requiring more evidence be preserved as the seriousness of the crime escalates; fingerprints relating to homicide cases, for instance, are kept indefinitely, but the prints in robberies or sexual assault cases are destroyed five years after the final appeal.

Justice Belobaba also notes that the loss or destruction of evidence is a serious problem for the wrongfully convicted – as evidenced by the cases of Stephen Truscott, Guy Paul Morin and David Milgaard.  The Innocence Project has had to drop seven cases in the past 13 years because relevant evidence could not be found. But, what is the Crown to do? Belobaba J.’s analysis sheds some light on the problems of the claim, and the issues of standing that arose from the wording of the application.

Look like the innocent flower, but be the serpent under’t: the judicial analysis

Belobaba J remarks that there is no dispute regarding Ms. Chaudhary’s right to seek declaratory relief with respect to her own ministerial review and the lost autopsy photos. An application confined to the facts of her case would disclose a reasonable cause of action. As framed, however, the application is so broad and sweeping that this judge finds two central issues:  1) that the request would be judicially unmanageable, and 2) the applicant may not have standing and/or public interest standing under the specific Charter provisions she seeks remedy under.

On the first point, I’d have to agree that the application is eye-poppingly broad. Take a second look: it declares that it is a s. 7 right of fundamental justice that all evidence and exhibits pertaining to all indictable offences be preserved for the lifetime of the offender (unless the offender waives this right, or a judicial order is granted).

Ms. Chaudhary is not arguing for the preservation of evidence in all first-degree murder cases, but in all indictable offences, which include hybrid offences. Furthermore, she’s not applying for the uniform preservation of certain types of evidence, which may prove critical for future ministerial reviews, like photographs and DNA samples, but all evidence.  This would include: property belonging to third parties (like stolen cars) evidence that is transitory (like crime scenes in people’s houses) and evidence that is perishable or hazardous to public safety (like corpses, toxic chemicals, and illegal substances) [para 16].

On the second point, the problem of standing, there are two sub-issues: private standing as it relates to s. 24(1), and public interest standing.

Ms. Chaudhary is not challenging a law or regulation, and cannot base her claim under the supremacy clause set out in s. 52 of the Charter. Owing to the fact that there is no law to regulate the harm that has potentially been done to her, she must bring her case under an application according to the Rules of Civil Procedure, specifically Rule 14.05(3)(g.1) which allows a remedy under the Charter. The applicable remedy is s. 24(1), which provides

“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

In this judgment, it is made out that s. 24(1) has a very narrow window for standing – even narrower than s. 52(1). A quick reading suggests this can’t be the case, you might think, but the constitutionally omnipotent Peter Hogg puts forward the assertion[Footnote 2, in para 20]. The right to remedy under s. 24(1) is said to be limited to someone whose rights have been infringed or denied. While that criterion may, after a case for it is made and argued on the merits, apply to the respondent, it can conclusively be stated that it does not extend to the whole range of criminals incarcerated for indictable offences cited in her application.

If public interest standing is available under s. 24(1), then the judge further asserts that the test for standing has not been satisfied. As outlined in Borowski v. A.G. Canada et al. 1989 CanLII 123 (S.C.C.), , the public standing litigant must show that:

There is a serious issue raised

The plaintiff is directly affected by the legislation or that the plaintiff has a genuine interest in its validity.

That there is no another reasonable and effective way to bring the issue before the Court.

While Ms. Chaudhary satisfies the first two requirements, she is said to fail the third, for she is not directly affected by the lack of uniform evidence retention standards as it relates to those convicted of hybrid offences, for example, or she is not affected by the lack of nation-wide legislations governing her issue. “There are clearly other and better litigants,” writes Belobaba J.

I would like to hope that cases of wrongful conviction are relatively rare. And, I would like to think that when the court gets a wind of a potential wrongful conviction where the Crown has LOST potentially relevant evidence that any judge would be bending over backwards to make it right. In this case, this is clearly is not so. If anything, the judge simply mourns the drafting of the respondent’s application, and calls for its overhaul and reapplication.

I think the Charter has been interpreted to exclude Ms. Chaudhary from bringing her application chiefly because the application was so dauntingly broad. Who wants to be the judge that tells the government that, in effect, the police can no longer return stolen property, destroy illegal drugs, or cremate corpses without judicial decree? Not me, and not Justice Belbobaba. I want to blame him, but I can’t.

Screw your courage to the sticking-place: what comes next.

In his reasons, Belobaba also briefly states that the legislature is under no duty to legislate, and that there is no s. 7 right relating to the preservation of evidence post-conviction. These comments effectively serve as kicks in the side to an already fallen foe on this application, but he promises they will become relevant if this case is reviewed on the merits that pertain directly to Ms. Chaudhary.

I eagerly await that judgment, if only for an answer to this question: how can the legislature not be under an obligation to legislate to protect the rights of our nation’s most vulnerable, those who have already had almost every other right taken away from them?

My own thoughts about this decision primarily revolve around the wording of the motion the court struck down. Did it have to be drafted to exonerate each and every one of Ms. C’s fellow inmates? Or did her counsel, a man held up as one of the most influential lawyers in Canada, a revered law professor and champion of underdogs the country over, try to bite off more than the court could chew? I can only imagine that after years of fighting the behemoth that is the Department of Justice, Professor Young tried to pull the wool over their eyes, just this once. He didn’t want to have to limit the facts to this case, but wanted the court to mandate that the government must retain all of the evidence in any of the cases he might see over at the Innocence Project headquarters. In any event, the case still holds plenty of personal and legal intrigue, and I eagerly await the result of the next round of Young v. The Government of Canada.

The media will have its say in all high-profile murder cases, and Ms. Chaudhadry’s write-ups have run the gauntlet from authors calling her a, “a child-killing, baby-making sex machine” to being quoted as saying, “I am so cursed with bad luck.”

Whatever is closest to the truth, the fact of the matter as I see it is that it doesn’t matter if Ms. Chaudhary is innocent or guilty – she could be a catalyst for a scheme for retention of evidence that will ensure this sort of snafu never plagues the Innocence Project, or our justice system, again.

Who is a better litigant to argue for an improved standard for evidence retention than someone who may never get to prove her innocence because of a Crown oversight? Once the application is phrased in a way that is judicially manageable, say, limiting it to those convicted of murder, Ms. Chaudhary could be the face of hope for the wrongfully convicted.

Someone has to represent those who have been incarcerated but still maintain their innocence, and those people are going to have to be on the outside. I would like to say, shame on you, disorganized Crown, for losing evidence– and congratulations, Professor Young, for taking note. Now back to the drafting table.

Earlier this year, in R. v. National Post, 2010 SCC 16, considered the dimensions of such a privilege in the context of the “Shawinigate” scandal involving former Prime Minister Jean Chretien. (Read more about the National Post decision here.) Essentially, the court rejected the argument for a class-based privilege between journalists and their sources, and also rejected the Charter argument put forth by the National Post. Instead, the Court concluded that the common law Wigmore test should be applied to assess privilege on a case-by-case basis.

Globe and Mail v. Canada (Attorney General), 2010 SCC 41, a decision released late in October, raises many of the same concerns about source confidentiality and journalist-source privilege, but in the civil litigation context. Relying on its earlier precedent in National Post, the Court quickly concluded that the Wigmore test was preferable to a blanket class privilege or a constitutional protection for the journalist-source relationship. But the Court also had to find a way to introduce the Wigmore framework – a doctrinal creation of the common law – into Quebec’s civil law system.

History and Facts

Using information obtained through a confidential source, Globe and Mail journalist Daniel Leblanc wrote a series of articles on the problematic activities surrounding the administration of the Sponsorship Program, a program created by the federal Cabinet in the late 90s to increase the government’s visibility in Quebec. Leblanc’s articles, which primarily targeted the misuse and misdirection of public funds, spawned a media furor, a political backlash and eventually even a Royal Commission (the Gomery Inquiry).

In 2005, the Attorney General of Canada filed a motion to recover money – a total of over $60 million – paid by the federal government under the program, and the Groupe Polygone was one of the entities implicated in the scandal. In response, the group maintained that the government had earlier knowledge of the scandal. It tried to advance a defence of prescription under the Civil Code of Quebec.

In the course of the litigation, Groupe Polygone applied for an order requiring certain persons to answer questions aimed at identifying the source behind the Globe and Mail articles. Hebert J. issued a series of orders instructing individuals to answer questions in writing.

A year later, the Globe brought a motion for revocation, arguing that the orders would have the effect of breaching journalist-source privilege. De Grandpré J. dismissed the paper’s objections, and leave to appeal was denied.

Additionally, in 2008, Leblanc wrote another article that reported details of the negotiation of a settlement between Groupe Polygone and the federal government.  Counsel for Groupe Polygone responded by complaining about the leak at the discontinuance proceedings, which created the need for further judicial guidance. As a result, de Grandpré J. made an order that prohibited Leblanc from reporting on the confidential settlement negotiations between the AG and the defendants. Although the Globe argued that the order was, in effect, a publication ban, de Grandpré J. maintained that it was not despite providing no interim written or oral reasons. Once again, leave to appeal was rejected by the Quebec Court of Appeal.

At the Supreme Court of Canada, the two principal issues were the journalist-source privilege that should be afforded to Leblanc and the anonymous tipster, and the publication ban.

Let’s Be Civil About This: Introducing the Wigmore Framework

In Globe and Mail, the Court strongly endorses the conclusion reached in National Post. There, the Court rejected arguments on the Charter and on a reporting-class privilege, and adopted the Wigmore framework for issues of journalist-source privilege.

In essence, in order for a privilege to be recognized, the claimant of the privilege – in this case, the journalist and the Globe and Mail – must satisfy all four of the factors:

(1) the relationship must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

Writing for the Court, LeBel J. doesn’t seem to deviate from Binnie J.’s approach in National Post, where a particular emphasis was placed on the third and fourth factors for the journalist-source context. However, LeBel J. is well-aware that the circumstances of this case are quite different, stating:

While this appeal raises issues similar to those addressed in National Post, the context is nevertheless different. This case involves civil litigation, not the criminal investigative process. It involves testimonial compulsion, and not the production of documents or other physical evidence. The parties’ dispute is subject to the laws of Quebec and the Quebec Charter. These factors must be considered in determining how, and to what extent, the majority reasons in National Post are equally applicable to the issues raised by this appeal.

Thus, although the Court concluded that the Wigmore case-by-case approach should apply in the context of ordinary civil litigation, it had to contend with Quebec’s unique civil law tradition. As noted by the Court, “it would be inappropriate for this Court to introduce into the Quebec law of civil procedure and evidence a framework for considering journalist-source privilege which originates entirely in the common law.”

In addition to the Civil Code, civil procedure is also codified in Quebec by means of the Code of Civil Procedure. The Court was quick to note, however, that the codification of civil procedure does not mean that civil procedure “is completely detached from the common law model.” They noted that the Civil Code sets out a legal framework and essential rules of the law of civil evidence, but general principles have still have to be considered when an unresolved issue emerges in the application of the law.

The Court quickly rejected arguments that journalist-source privilege is a quasi-constitutional privilege under the Quebec Charter, and acknowledged that neither the Civil Code nor the Code of Civil Procedure explicitly provided for the recognition of the privilege in a civil litigation context. However, the Court noted that constitutional and quasi-constitutional rights are engaged because “some form of legal protection for the confidential relationship between journalists and their anonymous sources is required.”

Thus, the need for a framework represents a “legitimate and necessary exercise” of the court’s power to interpret the law, and the Court analogized journalist-source privilege to police-informer privilege in this regard. Although police-informer privilege is a class privilege, the very thing they were rejecting, it does share roots in a common law rule of public policy.

In Bisaillon v. Keable, [1983] 2 S.C.R. 60, it was argued that since the Code of Civil Procedure was comprehensive, the omission of a testimonial exception for police informants meant that the Commissioner in the case could compel disclosure. Beetz J., writing for a unanimous case, concluded that because the police-informer privilege originated in the common law, the rule would only be overturned in Quebec law by a “validly adopted statutory provision.” Thus, since the Code of Civil Procedure was found to be lacking on this point, the common law rule remained a part of Quebec law.

Using this premise, the Court in Globe and Mail concludes that:

Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec.

Thus, although the Wigmore test doesn’t have to explicitly guide the analysis of lower court judges, the Court believes that it can “shape the structure of the analysis” when claims of journalist-source privilege are made in a Quebec civil litigation context.

On the issue of journalist-source privilege, LeBel J. concludes that Leblanc was entitled to have his claim for privilege tested against these criteria, and allowed the appeal. The Court remitted the matter to Superior Court for a consideration of his claim, in accordance with the framework provided in the Court’s judgment.

It’s Not Not A Publication Ban

After counsel for Groupe Polygone voiced their frustration over an article by Leblanc that publicized some of the details of a settlement negotiation between the Groupe and the Attorney General, de Grandré J. made an order without notice, without an application, and without submissions from either party. The judge also maintained that his order was not a publication ban, even though the order in effect forbade Leblanc from writing articles about the settlement negotiations.

On this point of appeal, LeBel J. clearly stated that de Grandpré J. had erred by depriving the parties the opportunity to be heard. Although the Court acknowledged that art. 46 of the Code of Civil Procedure gave the Superior Court judge the authority to make orders ex proprio motu, the judge must do so in light of the rights of the parties. Given that a publication ban infringes on the constitutional rights of a party, it cannot be imposed unilaterally.

The Court also rejected Groupe Polygone’s submission that Leblanc had committed a civil wrong under art. 36(2) of the Civil Code of Quebec, which quantifies “intentionally intercepting or using…private communications” as the invasion of the privacy of a person. The Court concluded that the wrong contemplated by this article was committed by the government source, and not the reportage of the information in the Globe and Mail. LeBel J. also cited strong policy grounds for this conclusion:

The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not provided the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources or information.

LeBel J. also concluded that this policy is consistent with the “Daily Mail principle” in the US, where the state cannot punish the publication of truthful information about a matter of public importance, absent a higher order public interest.

The Court also has no difficulty in qualifying the order as a publication ban, and concludes that the Dagenais/Mentuck framework should have been applied prior to making the order. In order to satisfy this framework, the order must be necessary to “prevent a serious risk to the proper administration of justice.” Additionally, the salutary effects of the ban must outweigh the deleterious effects to the rights and interests of the parties and the public.

LeBel J. found that the facts in this case failed to satisfy both prongs of the framework, and also addressed the question of the obligation on journalists when their source might be in violation of their confidentiality obligations:

…I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source’s information.

Entering a Post-Post Era

Picking up where National Post left off, Globe and Mail confirms that the Wigmore case-by-case analysis is the appropriate test for journalist-source privilege whenever it is raised as an issue. In addition, it provides a workable legal framework for the analysis under the Quebec civil law traditional.

However, if I may editorialize for a moment, both these cases also reaffirm the importance of the news media as the fourth estate. As a former journalist and editor, I have watched the discussion of a journalist-source privilege with great interest and although I know that many of my former peers would disagree with me, the Court has struck the appropriate balance in taking a case-by-case view.

Although there are a few negatives to a case-by-case standard – for one, it does not offer a reliable protection, and whistleblowers may be deterred for fear of having their anonymity compromised – it reflects the current nature of the journalistic profession. The truth of the matter is that “journalism” encompasses a broad range of media and a diverse range of reportage. Although a class privilege may have made more sense in print media’s heyday, it wouldn’t reflect the current nature of the profession.

More importantly, however, the Court’s approach to the Wigmore framework in cases of journalist-source privilege rightly places the focus on the third and fourth branches of the test, where a particular emphasis is placed on the public interest. Leblanc’s writings are an excellent example of how journalists play an essential role in serving the public interest. These kinds of journalistic endeavours, as we can see in the aftermath of the Sponsorship Scandal, can play a pivotal role in holding public actors accountable.

Thus, by placing greater weight on the third and fourth factors in both National Post and Globe and Mail, the Court has essentially afforded greater protections for journalist-source relationships that are beneficial to the public interest at large. In my view, these kinds of relationships are definitely worth fostering and protecting, and I think the Court has struck an appropriate balance.