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Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

Thu, 10/27/2016 - 10:00am

By: Nigel Bankes

PDF Version: Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

Decision commented on: Conciliation Commission, Between the Democratic Republic of Timor-Leste and the Commonwealth of Australia: Decision on Australia’s Objections to Competence, 19 September 2016 (Registry, the Permanent Court of Arbitration)


Part XV of the Law of the Sea Convention (LOSC or Convention) provides, inter alia, for “compulsory conciliation” with respect to disputes concerning the interpretation or application of the Convention in a number of instances. This particular dispute concerns Articles 74, 83 and 298 of the Convention. Articles 74 and 83 are the well-known provisions dealing with the delimitation of the exclusive economic zone and the continental shelf where there are overlapping entitlements as between adjacent or opposite states. Timor-Leste and Australia are opposite states separated by the Timor Sea which is approximately 300 NM wide. On the same day that Timor-Leste regained its independence (20 May 2002) the two states concluded the Timor Sea Treaty which established a Joint Petroleum Development Area pending delimitation of the boundary. Further negotiations between the two states led to the adoption (2006) of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In separate arbitral proceedings Timor-Leste is contesting the validity of CMATS. The two states have yet to agree on a permanent maritime boundary.

Article 298 is the “optional exceptions” provision of section 3, of Part XV of LOSC. Article 298 allows a party to opt out of compulsory and binding dispute settlement under Part XV, section 2 with respect to certain types of enumerated disputes if it deposits an appropriate declaration upon “signing, ratifying or acceding to the Convention or at any time thereafter”. Article 298(1)(a)(i) permits such a declaration with respect to “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles”. Australia has made such a declaration (at para. 69 of the Commission’s Decision) taking full advantage of the scope of the exception. However, this exclusion of “compulsory and binding” dispute resolution is subject to a proviso that where the parties are unable to reach an agreement “within a reasonable period of time” following negotiations a party must accept “submission of the matter to conciliation under Annex V, section 2” at the request of the other party. Article 11(2) of Annex V complements this and indicates that a party properly notified under Part XV, section 3 “shall be obliged to submit to such proceedings.” Thus, conciliation in these circumstances is compulsory.

Article 298(1)(a)(ii) goes on to provide that the Conciliation Commission shall provide a report with reasons and that the parties shall then “negotiate an agreement on the basis of that report”. If the parties are still unable to reach an agreement the paragraph further enjoins them to “submit the question” for binding dispute resolution under Part XV, section 2 but only “by mutual consent”. Hence, a party can still avoid binding dispute resolution under section 2 since the procedure for triggering section 2 is not compulsory.

This conciliation was initiated by Timor-Leste on 11 April 2016 by way of a “Notification Instituting Conciliation Under Section 2 of Annex V of UNCLOS” addressed to Australia. The notification is not posted on the PCA’s website but the Commission’s Decision notes (at paras 2, 13 & 98) that “Timor-Leste seeks compulsory conciliation with respect to “the interpretation and application of Articles 74 and 83 of UNCLOS for the delimitation of the exclusive economic zone and the continental shelf between Timor-Leste and Australia including the establishment of the permanent maritime boundaries between the two States.”

The procedure contemplated by Annex V is that the originating notification shall include the appointment of two conciliators “preferably chosen” from the list established under Article 2 of Annex V and comprising up to four conciliators appointed by each State Party and being persons “enjoying the highest reputation for fairness, competence and integrity.” In this case, Timor-Leste nominated Judge Abdul G. Koroma (Sierra Leone), and Judge Rüdiger Wolfrum (Germany). Judge Koroma was a judge of the International Court of Justice from 1994 – 2012. Judge Wolfrum is a sitting member of the International Tribunal for the Law of the Sea (ITLOS) and a frequent appointee to Annex VII tribunals, including the tribunals for the Chagos Award, the South China Sea Award and the Bangladesh/India Bay of Bengal Award. Australia in turn appointed Dr. Rosalie Balkin (Australia), and Professor Donald McRae (Canada and New Zealand). Article 3(b) of Annex V expressly allows each party to appoint as one of its nominees its own national (Dr. Balkin). Professor McRae has extensive experience as an arbitrator in investment treaty arbitrations and as counsel in law of the sea matters and is coming to the end of a ten year term as a member of the International Law Commission. Dr. Balkin is the former Director of Legal Affairs and External Relations at the International Maritime Organization (IMO) and has also served as counsel within the office of Attorney General (Australia). The party-appointed conciliators appointed Ambassador Peter Taksøe-Jensen (at para. 33) to serve as chair, drawing his name from a shortlist of candidates acceptable to both Parties. Ambassador Taksøe-Jensen has held various positions within the Danish Ministry of Foreign Affairs and also served as Assistant Secretary-General for Legal Affairs at the United Nations between 2008-2010. It is interesting to observe that none of the party appointees, nor Ambassador Peter Taksøe-Jensen, were drawn from the Article 2 list. Had the party-appointed conciliators been unable to reach agreement on the appointment of chair, the Secretary General of the United Nations would have been asked to make the appointment in which case the appointment has to be made from the Article 2 list (Annex V, Article 3(e)).

Annex V of LOSC, entitled “Conciliation”, is divided into two sections. Section 1 addresses conciliation pursuant to section 1 of Part XV, specifically Article 284. The characteristic of this form of conciliation is that it is conciliation by agreement of the parties. For that reason one would not expect there to be disputes as to the jurisdiction of competence of the conciliation commission. Section 2 deals with “compulsory submission to conciliation” pursuant to section 3 of Part XV and it is thus reasonable to consider that while Article 298(1) requires that a party “must accept” conciliation (or in the words of Article 11, “shall be obliged to submit to the proceedings”) that there might be, as in this present case, disputes as to the competence (jurisdiction) of the Commission. Article 13 admits of this possibility. Finally, while Annex V deals separately with conciliation by agreement and compulsory conciliation, section 2 on compulsory conciliation (Article 14) incorporates the procedural provisions of section 1, “subject to this section”.

Australia voiced six objections to the competence of the Commission: (1) Article 4 of the CMATS Treaty, the moratorium provision, precludes resort to compulsory conciliation under LOSC; (2) the CMATS Treaty including the moratorium was incorporated into LOSC as a provisional measure and was not displaced by LOSC; (3) an exchange of letters between the parties (on its own or together with CMATS) was an agreement within the meaning of Article 281 of LOSC to pursue settlement of this dispute by negotiations; (4) the dispute between the parties arose in 2002 and not subsequent to the entry into force of LOSC; (5) the parties had not engaged in negotiations over delimitation and thus compulsory conciliation under Article 298 could not be triggered; and (6) the dispute is inadmissible because seizing the Commission with this dispute is in breach of Timor-Leste’s obligations under CMATS.

The subsequent sections follow the Commission’s treatment of these issues. It should be noted that the Commission in its reasons seems to have collapsed issues (1) and (2) together. It also added two issues: the scope of the conciliation and the running of time. The Commission’s decision is unanimous.

(1) and (2): Did Article 4 of the CMATS Treaty preclude resort to compulsory conciliation under LOSC and was the CMATS Treaty moratorium incorporated into LOSC as a provisional measure that was not displaced by LOSC?

Article 4 of the CMATS treaty, entitled “moratorium”, provides in part as follows:

  1. Neither Australia nor Timor-Leste shall assert, pursue or further by any means in relation to the other Party its claims to sovereign rights and jurisdiction and maritime boundaries for the period of this Treaty.
  2. Notwithstanding any other bilateral or multilateral agreement binding on the Parties, or any declaration made by either Party pursuant to any such agreement, neither Party shall commence or pursue any proceedings against the other Party before any court, tribunal or other dispute settlement mechanism that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea.
  3. Any court, tribunal or other dispute settlement body hearing proceedings involving the Parties shall not consider, make comment on, nor make findings that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea. Any such comment or finding shall be of no effect, and shall not be relied upon, or cited, by the Parties at any time.
  4. Neither Party shall raise or pursue in any international organisation matters that are, directly or indirectly, relevant to maritime boundaries or delimitation in the Timor Sea.
  5. The Parties shall not be under an obligation to negotiate permanent maritime boundaries for the period of this Treaty.

In light of this provision, Australia took the view that Timor-Leste was precluded by CMATS from commencing the conciliation proceedings. The Commission did not share this view on the basis that any analysis of competence must start with LOSC and not with CMATS. Furthermore, as LOSC is a later treaty as between the parties (at para. 45), CMATS could only be relevant to competence to the extent that LOSC permitted it to have that effect. The LOSC provisions most likely to have that effect were the provisions of section one of Part XV which apply equally to the binding procedures of section 2 and to the compulsory conciliation procedures referenced in section 3 of Part XV (at para. 46). This led the Commission to next examine Australia’s objections to competence based on Article 281.

(3) Was the exchange of letters between the parties (either on its own or together with CMATS) an agreement within the meaning of Article 281 of LOSC to pursue settlement of the dispute over delimitation by negotiations?

Article 281 of LOSC provides that:

  1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.
  1. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit.

Australia relied on two instruments which together constituted an agreement within the meaning of Article 281. The first was an exchange of letters between the parties and the second was CMATS.

The exchange of letters between the parties dealt with the question of when the parties might seek to commence negotiations on a delimitation agreement following the conclusion and implementation of the Timor Sea Treaty and the international unitization arrangement for the Greater Sunrise Oilfield. Australia suggested that the exchange, albeit not a binding agreement in international law, was an agreement within the meaning of Article 281 to resolve delimitation through negotiations. The Commission rejected that argument on the grounds that while Article 281 does not expressly require a legally binding agreement, this qualification must be incorporated into the Article. In addition to referring to the South China Sea Award (which also required that any agreement relied upon for Article 281 be a legally binding agreement), the Commission gave two reasons for its conclusion. The first (at para. 56) was that as matter of text (“context” might have been more apposite) Article 281 stands next to Article 282 which has a parallel structure and clearly contemplates formal binding agreements. The two provisions should be interpreted in parallel, or, as the Commission put it (at para. 256):

The two provisions use the same terminology of “have agreed” and “agreement”, and the Commission does not consider that the text of the Convention would support significantly different meanings to the same terms appearing in two parallel articles.

Second, the Commission considered (at para. 57) that it would be inconsistent with the structure of Part XV to allow a non-binding agreement to permit parties to opt out of the provisions of a binding agreement.

But CMATS was clearly a binding agreement (at para. 62). The difficulty with CMATS is that CMATS, and in particular Article 4 quoted above, could not be read (at para. 62) as an agreement “to seek settlement of the dispute by a peaceful means of [the Parties’] own choice.” In point of fact (id), “CMATS is an agreement not to seek settlement of the Parties’ dispute over maritime boundaries for the duration of the moratorium.” The Commission went on to refer to Article 279 of LOSC before concluding (at para. 64) that “an agreement not to pursue any means of dispute settlement [cannot] reasonably be considered a dispute settlement means of the Parties’ own choice.”

(4) Did the dispute between the parties which arose in 2002 arise “subsequent to the entry into force” of LOSC?

Article 298 of LOSC provides that compulsory conciliation is only available with respect to disputes “subsequent to the entry into force of this Convention”. Australia contended that this should be read as when the Convention entered into force for the two parties inter se (2013) and that since the dispute as to delimitation arose in 2002 when Timor-Leste obtained independence, the Commission could have no competence (at para. 73). The Commission however agreed with Timor-Leste that in several places the Convention made a distinction between the entry into force of the Convention generally (1984) and entry into force for the parties (at para. 74). In Article 298 the drafters used the more general reference to the entry into force of the Convention. Both the plain meaning of the Article (at para. 74) and the negotiating history of the Convention (at para. 75) favored Timor-Leste. The Commission does not seem to have relied on Timor-Leste’s reference to the personal commentary of persons involved in the negotiations, and it certainly cannot have given much, if any, weight to Australia’s reference to the principle\rule of non-retroactivity of treaties (at para. 76).

(5) Had negotiations failed to settle the dispute within a reasonable period of time?

The language of Article 298(1)(a)(i) suggests that there is an additional jurisdictional hurdle to triggering compulsory conciliation which is that a party may only seek conciliation “where no agreement within a reasonable period of time is reached in negotiations between the parties”. The Commission however took a more limited view of the import of this provision noting that the text did not on its face require negotiations; it merely required that that if such negotiations had occurred, there could be no reference to conciliation if those negotiations had resulted in an agreement. The Commission justified this strict textual interpretation on the basis that an interpretation that required negotiations would allow one party to thwart access to compulsory conciliation by the simple expedient of refusing to enter into negotiations. The Commission went on to observe that there had in fact been negotiations and that these negotiations had resulted in CMATS. However, CMATS was not (at para. 78) “an agreement resolving the ‘dispute concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations’”.

(6) Should the Commission treat Timor-Leste’s application as inadmissible on the grounds that in bringing the application Timor-Leste was breaching its obligations under CMATS?

Australia sought two alternative forms of relief under this head: either dismissal of the application as being inadmissible, or a decision by the Commission to order a stay of proceedings pending resolution of the arbitration between Timor-Leste and Australia in which Timor-Leste is seeking a declaration as to the validity of CMATS. The Commission gave two reasons for rejecting this request. First, it took the view that there was no basis for the request since there was no possibility of inconsistent holdings as between the Commission and the arbitral panel. This was because in the conciliation proceedings Timor-Leste was not seeking to contest the validity of CMATS and neither was it seeking a ruling as to the compatibility of CMATS with LOSC. Secondly, even if CMATS were presumed to be valid that (at para. 89) “would not affect the Commission’s competence or the ‘admissibility’ of the dispute.” The mere allegation by Australia that Timor-Leste’s application was in breach of CMATS when Timor-Leste was contesting the validity of CMATS in other proceedings could not be enough to cause the Commission to treat the application as inadmissible – the doctrine of clean hands (at para. 92) does not run this far.

(7) The Scope of the Conciliation

During the course of the hearing on competence it became clear that the parties had different views as to the scope of the conciliation. Timor-Leste described its vision of the scope of the proceedings as three-fold (at para. 93):

First, we hope that the Commission can assist the Parties to reach an agreement on the delimitation of permanent maritime boundaries . . . .

. . .

In addition to the issue of permanent maritime boundaries, a second task for the Commission is to assist Australia and Timor-Leste to agree on appropriate transitional arrangements in the disputed maritime areas, to bring the Parties from their current temporary arrangements to the full implementation of their newly agreed permanent maritime boundary.

Finally, a third task for the Commission, and one related to the issue of transitional arrangements, concerns the post-CMATS arrangements. With the expected termination of CMATS, and with it the Timor Sea Treaty, the Parties will benefit from the assistance of the Commission in finding the optimal way to come to a mutual position on dissolving the joint institutions and arrangements found in those provisional arrangements, and moving on.

Australia objected to this statement of scope on the grounds that it went beyond the statement of scope as submitted by Timor-Leste in its originating notice (and as quoted above). But the Commission pointed out (at para. 98) that Timor-Leste’s statement was inclusive and furthermore that it was unlikely that any such statement could serve to define the scope of proceedings. Clearly the Commission considered that the language of the Convention (especially Articles 74 and 83) was much more significant. The Commission quoted the articles and then observed as follows (para. 97):

It is apparent from an examination of these articles of the Convention that they address not only the actual delimitation of the sea boundary between States with opposite or adjacent coasts, but also the question of the transitional period pending a final delimitation and the provisional arrangements of a practical nature that the Parties are called on to apply pending delimitation. The Commission does not, therefore, see that Timor-Leste’s request that the Commission also consider transitional arrangements, or the arrangements that the Parties may enter into following the termination of CMATS, lies outside the scope of Articles 74 and 83 or, correspondingly, of Article 298(1)(a)(i).

(8) The running of time

Article 7 of Annex V provides in mandatory terms that “[t]he commission shall report within 12 months of its constitution.” Article 7 is part of section 1 of Annex V, which, as noted above, applies to the voluntary conciliation procedures under LOSC. However, Article 14 also makes Articles 2 – 10 of section 1 applicable to compulsory conciliations but “subject to this section”. The question for present purposes was whether the 12 months should run from the time that the Commission was properly constituted (25 June 2016) or whether it should run from the date of this decision i.e., the date upon which the Commission determined that it had the competence to proceed? The parties had different views. Timor-Leste preferred the foreshortened time frame, and Australia the longer. The Commission adopted Australia’s approach. The Commission noted that the deadline was important and that the purpose of the deadline (at para. 107) is “to fix an end to the procedure and to ensure that a party is not compelled to continue endlessly a conciliation process that, in its view, has no hope of success.” However, it is also important to recognize that no party should be subjected to compulsory conciliation with a commission that lacks competence and it is for this reason that Article 13 provides an opportunity to give (at para. 109) “serious attention to any disagreements regarding competence.” The key to resolving these competing tensions is the “subject to” language of Article 14 (at para. 109):

The deadline in Article 7 must therefore give way to the time needed to consider and decide objections to competence and is thus properly understood to run only after a Commission has addressed any objections that may be made. Any other approach would run the risk of a commission failing to give proper consideration to a justified objection to competence or, alternatively, of giving such objections appropriate attention only to find that too much time had elapsed for the parties to fairly evaluate whether the conciliation process was likely to prove effective and worthy of extension by agreement.


I have two concluding comments. The first acknowledges the importance of the decision in the context of the widespread availability of compulsory conciliation in a range of different instruments. The second makes the point (perhaps counter intuitive and surprising), that conciliation proceedings may be an important source of interpretive jurisprudence in relation to both the Convention and other instruments.

The availability of compulsory conciliation

This is the first conciliation to be launched under LOSC and the first decision on competence. The report on the merits will be eagerly awaited for its additional guidance. Additionally, both this preliminary decision and any subsequent report should attract a broad readership beyond the law of the sea community. This should be the case because of the widespread availability of compulsory conciliation in multilateral environmental agreements (MEAs) such as the Convention on Biological Diversity (Article 27(4) and Part 2 of Annex II), the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Article 20(6)), the Stockholm Convention on Persistent Organic Pollutants (Article 18(6) and Annex G, Part II), and the Vienna Convention for the Protection of the Ozone Layer (Article 11(4) & (5)). Compulsory conciliation also features in the Vienna Convention on the Law of Treaties (Part V, esp. Article 66, and the Annex to the Convention).

The “jurisprudence” of conciliation

While it is clear that a report of a Conciliation Commission (with reasons) on the merits is not binding on the parties, decisions of the Commission on matters of competence are binding on the parties in the sense that a state party is obliged (at para. 95) to participate in a properly constituted conciliation. Since a Conciliation Commission is properly vested with the authority to determine its own competence (Annex V, Article 13) the failure to participate once the Commission has ruled on competence will itself engage the responsibility of the non-participating state. It is notable that the Convention treats the failure of a party to participate in a competent conciliation in exactly the same way as non-appearance in Annex VII arbitral proceedings or proceedings before ITLOS, that is to say, it “shall not constitute a bar to the proceedings” (see Annex V, Article 12; Annex VII, Article 9; and Annex VI, Article 28).

Given this, there is good reason to think that a Decision on Competence of a Conciliation Commission should be accorded a normatively persuasive status similar to that of the decisions of Annex VII tribunals or of an international court. Thus, while such a decision is clearly not binding on a subsequent tribunal it is entitled to respectful consideration based on the quality of the supporting reasons.

As we have seen, this Commission has made a series of important rulings on the interpretation of Part XV, Annex V and other provisions of the Convention in the course of making its decision on competence. It reached these interpretations following argument from eminent counsel and it did so in light of the jurisprudence of the International Court of Justice (see e.g. reference in footnote 80), ITLOS (see references in footnote 56), and Annex VII tribunals (see references in footnotes 35 & 44). It is therefore appropriate to conclude this post by summarizing the various rulings of the Commission on points of law (the “rich pickings” of my title).

  1. The starting point for any analysis of the competence of the Commission must be the Convention itself and not any other agreement between the parties. See para. 44.
  2. Timor-Leste acceded to LOSC with effect from 7 February 2013; CMATS was concluded between Australia and Timor-Leste on 12 January 2006. LOSC is therefore the later (most recent) treaty between the Parties. See paras 1, 10, 45 & 84.
  3. Section 1 of Part XV serves a jurisdictional function for the entirety of Part XV and applies equally to compulsory conciliation under section 3 as it does to compulsory and binding dispute resolution under section 2. See paras 46 & 50.
  4. Article 281 is only triggered where there is a legally binding agreement between the States Parties to the dispute. See paras 55 – 57 and following the South China Sea Award.
  5. An agreement not to pursue any means of dispute settlement is not an agreement to seek settlement of a dispute settlement by a means of the Parties’ own choice within the meaning of Article 281. See paras 62 – 64.
  6. A logical corollary of opting out of compulsory and binding dispute resolution in relation to Articles 15, 74 and 83 and in relation to disputes involving historic bays or titles is the acceptance in advance of compulsory conciliation. See at para. 68 (reciting Australia’s acceptance of this proposition), and at para. 95.
  7. The reference in Article 298 to a dispute that has arisen after the entry into force of the Convention is a reference to the entry into force of the Convention as a whole (1994) and not to the entry into force of the Convention as between the parties to the particular dispute. See paras 73 – 76.
  8. An objection based on the date upon which a dispute arises under Article 298(1)(a)(i) must invoke a dispute which concerns the interpretation or application of the Convention as distinct from a dispute which invokes pre-existing rights and obligations from other sources. See para. 70.
  9. Article 298(1)(a)(i) does not expressly require that prior negotiations between the parties to the dispute actually take place since such a requirement would effectively grant a party the right to veto any recourse to compulsory conciliation by refusing to negotiate. The provision merely requires that no agreement be reached within a reasonable period of time in any such negotiations (should there be any negotiations). See para. 78.
  10. As a later treaty which does not derogate from LOSC (and for which no notification had been given under Article 311(4)) the relationship between CMATS and LOSC is governed by Article 281 and 282 (at least for the purposes of dispute resolution) and CMATS did not meet the requirements of these articles. See para. 85.
  11. The clean hands doctrine does not extend so far as to make the possible breach of some other agreement, such as CMATS, a bar to dispute resolution proceedings. See para. 92.
  12. The scope of the conciliation is to be determined not only in light of the originating notification but also by Article 298 and by the scope of the declaration made by the State excluding the procedures under section 2. See paras 68, 95, 97, 98 and proposition #6 above.
  13. In the case of a compulsory conciliation under Annex V, Section 2, the 12-month reporting rule of Article 7(1) of Annex V, Section 1, runs from the date of the Commission’s decision on its competence in a case where one of the parties contests the Commission’s competence under Article 13 of Annex V.

This post originally appeared on JCLOS, The blog of the K.G. Jebsen Centre for the Law of the Sea

This post may be cited as: Nigel Bankes, “Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission” (27 October, 2016), on-line: ABlawg, _Oct2016.pdf

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The Appointment of Justice Rowe

Wed, 10/26/2016 - 10:00am

By: Drew Yewchuk

PDF Version: The Appointment of Justice Rowe

Event Commented On: Nomination of the Honourable Malcolm Rowe for Appointment to the Supreme Court of Canada

On October 17, 2016 Prime Minister Trudeau nominated Justice Malcolm Rowe for appointment to the Supreme Court of Canada. Justice Rowe was a trial judge in Newfoundland and Labrador for two years before being appointed to the Court of Appeal of Newfoundland and Labrador in 2001.

The first section of this post describes the recent changes to the Supreme Court appointment process, as Justice Rowe is the first nomination under the new process. The second section of this post reviews Justice Rowe’s application for the position. The third discusses the public hearing, which I attended in Ottawa on 25 October 2016.

The Appointment Process for Supreme Court Justices

The Supreme Court Act, RSC 1985, c S-26, s 4(2) gives the power to appoint Supreme Court justices to the Governor in Council. It does not describe any process for how the Governor in Council is to do so. Prior to 2004, any consultation that took place was confidential and informal. A new process was adopted by the Liberal government in 2004 that was ad hoc and quickly organized. The 2004 committee had only one day’s notice as to who the two nominees were before speaking to them, and no part in the selection process. This process resulted in the appointment of Justices Abella and Charron to the Supreme Court.

The 2005 committee – also struck by the Liberals – participated in the selection process by narrowing the short list of six names (chosen by the Minister) down to three names. The committee included representatives of each political party. The Liberals were defeated in an election before completing the process and the Conservatives completed the nomination process. This was the first year that there was a public interview process between parliamentarians and the nominee, and it led to the appointment of Justice Rothstein in 2006. Process has remained inconsistent. In 2008 the Conservatives were in power, and the vacancy occurred during an election – ultimately no selection process or hearing was applied when Justice Cromwell was appointed. (See here for a description of the process up until 2009). Process has been inconsistent in recent years – both Justice Gascon and Justice Côté were appointed in 2014 without any public hearings and the same was true of Justice Brown’s appointment in 2015.

The new process was announced August 2nd, 2016. First an independent advisory board was established; The Prime Minister appointed a chairperson (The Right Honourable Kim Campbell) and two other members to the board (with two of the Prime Minister’s nominees being non-lawyers), and four independent professional organizations (the Canadian Judicial Council, the Canadian Bar Association, the Federation of Law Societies of Canada, the Council of Canadian Law Deans) were invited to nominate a member each to the board. There is a notable effort to de-politicize the advisory board; unlike previous committees used to select Supreme Court justices, the board includes no sitting members of Parliament or the Senate.

From August 2nd to August 24th the board accepted applications from judges and lawyers who met the requirements of the Supreme Court Act and who were functionally bilingual. The board was also mandated to seek out qualified applicants to encourage them to apply. The board then created a short list of applicants that they presented to the cabinet, and following a consultation period between the Minister of Justice, the Chief Justice of the Supreme Court, and other stakeholders, recommendations were made to the Prime Minister. The Prime Minister then selected the nominee. Justice Rowe was selected from the short list, although the short list was not binding on the discretion of the Prime Minister.

On October 24th, Minister of Justice Wilson-Raybauld and the Chairperson of the Advisory Board went before the House of Commons Standing Committee on Justice and Human Rights to explain the choice of nominee, and on October 25th, the nominee took part in a question and answer period before the House of Commons Standing Committee on Justice and Human Rights, the Standing Senate Committee on Legal and Constitutional Affairs, and representatives from major political parties lacking representation on those committees.

It must be noted that the new process is not entrenched in law – there is still nothing that compels Prime Ministers selecting Supreme Court Justices in the future to follow this procedure.

Some Comments on the Application of Justice Rowe

Although there is a convention to have one Justice from Atlantic Canada on the Supreme Court, the government said that it would not necessarily follow this tradition. This caused a bit of an uproar in the Atlantic Provinces. While Trudeau’s government did not officially back down from their position, they did ultimately select a judge from an Atlantic Province – Justice Rowe is actually the first Supreme Court Justice from Newfoundland and Labrador.

Some portions of the application document submitted by Justice Rowe are available on-line, and they make for interesting reading. While the document is not linear enough to effectively summarize, I will highlight a few interesting portions. The application included a questionnaire that asked for five examples of writing demonstrating the legal reasoning and writing of the applicant. Justice Rowe’s five selections were:

(1) “What is the Constitution of a Province” (with Michael Collins, a clerk of the Newfoundland and Labrador Court of Appeal) in Provinces, edited by Prof. C Dunn, 3rd ed, 2015, University of Toronto Press. This is a book chapter about the impact on provincial governments of constitutional conventions, quasi-constitutional statutes, and rules for operating the legislatures.

(2) R v Oxford, 2010 NLCA 45 (CanLII), a criminal law case dealing primarily with the test for when a court should accept joint submissions on sentencing and rejecting using the totality principle to increase the sentence.

(3) R v JJ, 2004 NLCA 81 (CanLII), another criminal law case focusing on sentencing, dealing with the circumstances in which a court should employ sentencing circles for Indigenous offenders.

(4) Council of Independent Pharmacists v HMTQ (Newfoundland and Labrador), 2013 NLCA 32 (CanLII), a case dealing with the interpretation of regulations and a determination of when a regulation exceeds the scope permitted by its enabling statute.

(5) Newfoundland and Labrador (Consumer Advocate) v. Newfoundland and Labrador (Public Utilities Board), 2015 NLCA 24 (CanLII), an administrative law case dealing with the standard of review, rejecting an approach to expand the scope of jurisdictional questions, and the appropriate remedies when a decision is quashed.

The final section of the application asks about “reconciliation of the need to provide guidance on legal questions of importance to the legal system as a whole with the specific facts of a case which might appear to lead to an unjust result for a party?” Justice Rowe’s reply is a good example of answering a question in a manner those with legal training would likely consider ‘judicious’ and those without such training would probably describe as ‘self-contradictory’ or at least confusing:

The Supreme Court maintains and develops the structure of law in Canada. Stability and predictability are important to maintain that structure. But, adaptation to changes in society, including changes in shared goals, is critical to the law’s development. It is important to operate from first principles, while also considering practical results. It is no less important to eschew ideological positions. Should the Court lead or mirror a shared sense of justice? The answer is, of course, both. Generally, it should lead when the time is ripe to do so, having regard to the needs and aspirations of Canadians.

The Question and Answer Session

I had the pleasure of being one of the law students to attend the Question and Answer session (those not so lucky can watch the session here). Each questioner had a fixed five minutes to ask questions and receive answers, meaning that no more than two questions could be effectively asked by and answered for each. The Parliamentarians have no ability to block the Prime Minister’s selection– so unless something was discovered about Justice Rowe during the session that would give Prime Minister Trudeau some reason to reconsider his selection, Justice Rowe can be expected to be appointed to the Court shortly. I won’t keep you in suspense: nothing of the sort came up. The session lived up to the description given to it by moderator and law professor Daniel Jutras: “a chance to glimpse into the mind of a great jurist.”

In addition to the absence of decision-making authority by the questioners, the question and answer session had another constraint: Justice Rowe could not be asked to answer any questions that may come before the courts, to explain his reasoning on past judgments he has made, or to describe his position on past Supreme Court decisions. It would damage judicial independence and the finality of judgments to allow a Supreme Court nominee to commit themselves to any such positions. This limitation made the forming of questions a considerable challenge – the most obvious questions could not be asked. The questioners attempted to skirt the rule in a number of ways: using hypotheticals (which were thinly veiled attempts to ask about future potential cases), and attempts to describe the ‘process’ of making a past judgment – which is not always distinct from elaborating on the reasons given. At times it seemed the more challenging part of the session was to be on the asking end.

The structuring of questions seemed to require the questioner to walk a fine line – any specificity to a case and the question could not be answered (for example a question about a sexual assault case currently before the Supreme Court on which Justice Rowe heard the appeal), and a question that was too general would receive an impeccably correct but non-specific answer that could have been obtained by consulting a law textbook. Notwithstanding these challenges some of the questions invited interesting answers. A rule of thumb those approaching this process as future questioners should consider: if a question includes either the name or description of a particular case, that question will not receive an answer satisfactory to the questioner.

One issue that came up in two different ways was the representation of minority groups on the Supreme Court – an important question, but also an odd one for Justice Rowe. Justice Rowe has been selected for the Supreme Court, but he did not do the selecting (as he reminded the panel). These questions revealed Justice Rowe’s belief that Supreme Court Justices do not represent their respective regions’ interests on the Court – each Justice is a Justice for all of Canada (“all of the members of the Supreme Court of Canada, in a sense, must speak for the Country… there is a common undertaking”). However, he also acknowledged the importance of judges with different backgrounds, and the importance of understanding the context of the cases the Court hears. The convention for Supreme Court appointments that emphasizes the importance of regional representation, to the extent that it has impeded representation of other minority groups, is perhaps becoming a difficult tradition to justify. However, the issue of what representation to prioritize on the Supreme Court is one that the Prime Minister is ultimately responsible for.

Two questioners asked Justice Rowe about a claim from his application that “Through the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it.” Justice Rowe’s answer, while not revelatory to those acquainted with SCC decisions, was a clear and rapid introduction to the role of courts in Canadian law. The role of the courts is to interpret statutes in accord with the intention of Parliament, and Parliament is free to rewrite statutes where they feel the court has misinterpreted them. The interpretation of the Charter is different – it involves the protection of rights given to Canadians from legislatures. Both of these interpretive tasks effectively involve creating new law to effectively answer novel questions. It was odd to see legislators appear to take issue with a statement that seemed like little more than a factual description of the work of the courts.

Questions on the development of Aboriginal rights in Canadian law brought out some of Justice Rowe’s most interesting answers. In addition to reviewing the approach to Aboriginal law and Aboriginal title, Justice Rowe offered some thoughts on the role of the Supreme Court on Aboriginal law and the process of reconciliation:

There is an interesting relationship between the courts, particularly the Supreme Court of Canada and governments and indigenous leadership in terms of how much the court says and when it says it. I think it would be unwise for the Court to get out ahead of a process which I truly hope will be a process of reconciliation…which will come through nation to nation dealings. And in a sense the Court should stand a little apart from that, always, always, bearing in mind that if a First Nation or some group of Indigenous persons wishes to vindicate their rights before the court they have a right to be heard and to receive a remedy where that is warranted…

The questions brought out some other interesting odds and ends. Justice Rowe spoke in favour of clarity in Supreme Court judgments – especially in the portion of the judgment intended to be a definitive statement of law. He indicated that government references to the Supreme Court involve “existential questions” and that he is “in a sense, relieved that [he] will never be called upon to frame” such questions. He also gave a succinct answer describing the role of a judge “to do right according to law”, and stated that his favourite past Supreme Court Justice was Justice Sopinka, who was appointed to the Court directly from practice.

In general, I believe the major function of the question and answer session was to effectively inspire confidence in Justice Rowe. There were no serious challenges to his qualifications before the session, and I doubt we will see any after. While the session in part reflected what Justice Rowe had written in his application, his demonstration of his ability to think quickly and articulate himself (in both French and English) on a variety of legal matters while keeping in mind the restrictions on what he could say, was not a small feat. The question and answer session seems to be relevant to the Supreme Court Justice selection process primarily as it builds confidence in the nominee prior to their official appointment to the Court. As for the appointment process itself, as I noted above it is not entrenched in law and thus there is no assurance this process will be followed next time.

This post may be cited as: Drew Yewchuk, “The Appointment of Justice Rowe” (25 October, 2016), on-line: ABlawg,

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R v Anthony-Cook and the Community’s Sense of Justice

Tue, 10/25/2016 - 10:00am

By: Lisa Silver

PDF Version: R v Anthony-Cook and the Community’s Sense of Justice

Case Commented On: R v Anthony-Cook, 2016 SCC 43 (CanLII)

In R v Anthony-Cook, 2016 SCC 43 (CanLII), Justice Moldaver, on behalf of the full court, clarifies the test to be applied by a sentencing judge when departing from a joint submission on sentence and then gives clear step-by-step instructions to judges on how to properly apply the appropriate test. The joint sentence recommendation in this case arose out of a tragic set of circumstances in which the 28-year-old offender, who suffered from addiction and mental health issues, assaulted a fellow attendee at a local addiction and counselling organization. The assault resulted in death, and Mr. Anthony-Cook, after his lawyer negotiated a plea resolution with the Crown prosecutor (including an agreement on sentence), entered a plea of guilty to the charge of manslaughter. At the sentencing hearing, the defence and Crown prosecutor offered a joint submission on sentence, recommending the offender receive a further 18-months incarceration (he had already been in custody for a total of 11 months) without any period of probation.

The sentencing judge declined to accede to the joint recommendation as the proposed sentence did “not give adequate weight to the principles of denunciation, deterrence, and protection of the public” (R v Anthony-Cook, 2014 BCSC 1503 (CanLII), Ehrcke J at para 68) and instead imposed a sentence of two years less a day to be followed by 3 years of probation. (at paras 54 to 63) In the sentencing judge’s view, the sentence proposed was unfit and therefore he was not bound by the joint submission. As a result, he departed “to some extent” from the negotiated sentence recommendation. (at para 67) The British Columbia Court of Appeal agreed with the sentencing judge’s assessment that the proposed sentence was unfit and not in the public interest and found no error in his sentencing decision. The matter was further appealed to the Supreme Court of Canada (SCC) to clarify the test to be used by a sentencing judge in departing from a joint submission on sentence. Appellate courts across Canada were not ad idem on the issue, using four different tests for departure: the fitness test, the demonstrably unfit test, the public interest test, and a test which viewed the issues of fitness and public interest as the same. The SCC was asked to clarify which test was the controlling one, with the Court unanimously approving the public interest test. As the sentencing judge erred by applying the incorrect test, Anthony-Cook’s negotiated sentence was imposed by the Court.

As we have come to expect from Justice Moldaver, he writes a plain language decision giving practical guidance to the sentencing judge in the context of the realities of our criminal justice system. This system is realistically depicted in other recent SCC decisions, most notably in R v Jordan, 2016 SCC 27 (CanLII), where we are told that trial fairness, a most cherished aspect of our principles of fundamental justice, is not in fact in “mutual tension” with trial efficiency; rather they are, “in practice,” in a symbiotic or interdependent relationship. (at para 27) According to Jordan (at para 28), “timely trials further the interests of justice.” These “interests of justice” involve our “public confidence in the administration of justice” and most notably our “community’s sense of justice.” (at para 25) It is therefore within the public interest to create clear and articulable bright-lines in our justice system to promote these community values. In the Anthony-Cook decision, the SCC continue their search for clarity by delineating the line at which a sentencing judge can depart from a joint recommendation agreed to by the defence and the prosecution as determined by the “public interest test.” Yet, as illuminating as this public interest test may be and as clear as the guidance is, just what the Court means by “public interest” must be unpacked by reference to other SCC decisions and by the Court’s concept of the “community’s sense of justice.”

I purposely use the metaphor of “unpacking” for a reason. For to fully understand the public interest test in Anthony-Cook we must not only travel to those obvious decisions cited in Anthony-Cook, such as R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII) and R v Power, [1994] 1 SCR 601, 1994 CanLII 126 (SCC), but also to those decisions not mentioned by Justice Moldaver, such as Jordan, that have a clear and convincing connection. For the sake of “timeliness,” I will travel to one such notable case, R v St-Cloud, [2015] 2 SCR 328, 2015 SCC 27 (CanLII), a unanimous decision rendered by Justice Wagner, on the test to be applied to the oft troublesome yet revamped tertiary ground for bail release under s. 515(10)(c) of the Criminal Code. (For a further discussion of the St-Cloud decision, read my post on ideablawg.)

We find in St-Cloud a fulsome discussion, a “deep dive” so to speak, into the meaning of the term “public.” This case sheds the brightest light on the SCC’s emphasis on the public as the litmus test for concerns relating to the administration of justice generally and advances future SCC decisions on the trial judge’s specific role as the guardian or “gatekeeper” of a properly functioning justice system. I would argue, but leave to a future time, that the gatekeeping function of a trial judge is expanding under recent pronouncements from the SCC. This feature, in my view, is no longer confined to the traditional evidentiary gatekeeping duties but is reflected in the Court’s vision of the trial judge, in the broadest sense, as the protector and keeper of the administration of justice as informed by the public’s confidence in that system.

How much does this concept of the public impact the Anthony-Cook decision? I would argue, quite a lot. In Anthony-Cook, Justice Moldaver refers to both the phrase “public interest” and the term “confidence.” In Moldaver J’s view, “confidence” is a key indicator of the public interest. Therefore, the public interest test not only directly relates to the public’s confidence in the administration of justice but also to the offender’s confidence in that same system. This twinning of the public and the accused harkens back to Jordan’s twinning of trial fairness and court efficiency. We, in criminal law, do not traditionally align the community’s sense of justice with the offender’s need for justice. We tend to compartmentalize the two as the antithesis of one another except when directed to do so by law, such as in considering the imposition of a discharge under s. 730 of the Code, where such a sanction depends on the best interests of the accused and is not contrary to the public interest. In Anthony-Cook, we have come full circle as the sentencing judge must take into account all aspects of the term “public”.

Indeed, as recognized by the Court in Jordan and the many recent SCC decisions on sentencing, this silo approach is no longer useful or valid. Now, the “community’s sense of justice” is approached holistically in the grandest sense yet tempered by the balance and reasonableness our Canadian notion of justice is founded upon. Indeed, as discussed earlier, the key descriptor of the community in Anthony-Cook and, quite frankly in most community-oriented legal tests, is “reasonableness.” A “reasonably informed” and “reasonable” community participant is the embodiment of the “public interest.” Although this limiting notion is expected in order to provide the bright-line needed in criminal law, to ensure citizens fair notice of the law and to give those enforcing the law clear boundaries (see R v Levkovic, [2013] 2 SCR 204, 2013 SCC 25 (CanLII), Fish J at para 10), in a society where we value multiculturalism and diversity, this concept of “reasonableness” might not resonate and might not “in practice” fulfill the promise of the “community’s sense of justice.” No doubt, this is a matter that needs to be further “unpacked” as we continue our legal journey through the vagaries of the rule of law.

In any event, whatever inferences are needed in order to apply the public interest test, according to the SCC, it is the responsibility of our judiciary to be mindful of us, the public, and to apply our common sense, our “community’s sense of justice” in the “delicate” task of sentencing. (see Lacasse, Wagner J at paras 1 & 12; see also R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), Lamer CJ at para 91) This sense of community justice, as articulated in Anthony-Cook, will provide the guidance the sentencing judge needs in assessing whether or not a departure from a joint recommendation as to sentence, which is an acceptable and desirable practice promoting the twin desires of fairness and timeliness, is just and appropriate.

This post may be cited as: Lisa Silver, “R v Anthony-Cook and the Community’s Sense of Justice” (24 October, 2016), on-line: ABlawg,

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Putting the Negative in Restrictive Covenants

Mon, 10/24/2016 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: Putting the Negative in Restrictive Covenants

Case Commented On: Russell v Ryan, 2016 ABQB 526 (CanLII)

This is a restrictive covenant case involving a planned golf course and an adjacent residential subdivision. It does not offer any new law on the requirements for a valid restrictive covenant in equity or on the specific requirement that a restrictive covenant must be negative in substance. Nevertheless, by distinguishing the wording of the restrictive covenant in this case from the wording of the restrictive covenant in Aquadel Golf Course Limited v Lindell Beach Holiday Resort Ltd, 2009 BCCA 5 (CanLII), reversing 2008 BCSC 284 (CanLII), it usefully contributes to an understanding of when a covenant will be considered negative in substance. Russell v Ryan also raises the issue of whether covenants in a development agreement are severable from one another for the purposes of determining if one of them, or a portion of one of them, is negative in substance but, unlike the BC Court of Appeal decision in Aquadel, Alberta Court of Queens Bench Justice Joanne Goss does not decide this issue.


In 1989, Richmond Hill Golf Club Ltd and Wedgewood Developments Ltd agreed to exchange parcels of land near Grande Prairie. As part of that exchange, Wedgewood Developments agreed to pay for the construction of a nine-hole golf course on the lands it had transferred to Richmond Hill Golf Club (the Golf Club lands). The parties agreed that all of Richmond Hills’s obligations would come to an end if the nine holes were not finished within five years of the date of this agreement.

Wedgewood Developments registered a Restrictive Covenant against the title to the Golf Club Lands which provided, in part:

The covenants and conditions attached to the said lands are that they will be developed only for use as a golf course and for no other use (including ancillary golf course use such as club house, pro shop or parking lot) whereby the enhancement in value and enjoyment by the owners from time to time of the lands set out in Schedule “A” may be diminished.

The covenants and restrictions herein imposed shall run with the land and enure to the benefit of the undersigned, being the registered owner in fee simple of the said lands as well as the owner of the lands set out in Schedule “A” and every purchaser or transferee of the undersigned of the lands set out in Schedule “A” hereto, their respective heirs, administrators, executors, successors and assigns for the period of time above stipulated. (emphasis added)

Wedgewood Developments did not construct the golf course by 1994, the end of the five years. Feasibility studies had revealed geotechnical problems which would make the development of a golf course financially and environmentally unfeasible.

In 2003, the County of Grande Prairie adopted a new land use bylaw that changed the zoning in the Wedgewood area in order to reflect the housing already developed or being developed. The County made the zoning change in consultation with Wedgewood Developments which confirmed that a golf course would not be proceeding. The Golf Club lands were re-zoned as Rural Residential (RR-I) and a golf course is not a listed use under that zoning.

The four respondents own property located next to the Golf Club lands, properties that were listed in Schedule A of the Restrictive Covenant. They purchased their properties between 2000 and 2007.

In 2006, the applicants purchased two lots within the Golf Club lands. The rest of the Golf Club lands were either transferred to the County as Municipal Reserve or remain undeveloped. In 2015, the applicants and the County entered into an agreement permitting the development of land that included those two lots. The County also approved the applicants’ plan of subdivision and, as a result of subdividing, they now own three lots on the Golf Club lands. Water, sewer and electrical services have been installed for these three lots.

This case is the result of the applicants’ desire to build houses on their three lots on the Golf Club lands. The Restrictive Covenant, registered against the titles, stood in their way. The applicants therefore applied for an order under section 48(4) of the Land Titles Act, RSA 2000, c L-4 directing the Registrar to discharge the restrictive covenant registered against their three lots. The applicants made two arguments in support of their application: first, that the Restrictive Covenant did not run with the land, and, second, that it conflicted with the provisions of the land use bylaw.

The respondents wanted to enforce the Restrictive Covenant. They believed that the Golf Club lands would remain green space and they felt the development of that land would diminish the value of their properties. They sought a permanent injunction enjoining the applicants from constructing or developing any home or building on their three lots.


Justice Joanne Goss set out four issues (para 18):

  1.    Does the Restrictive Covenant run with the land?
  2.    Does the Restrictive Covenant conflict with a bylaw?
  3.    Do the Respondents have standing to enforce the terms of the Restrictive Covenant?
  4.    Are the Respondents entitled to a permanent injunction?

Justice Goss held that the Restrictive Covenant did not run with the land because it was not a negative covenant, and this post will focus on that point. Having decided the first issue in favour of the applicants, Justice Goss did not need to and did not deal with the second and third issues. With respect to the fourth issue, she held the respondents were not entitled to a permanent injunction because there was “evidence that by 1994, well before the Applicants acquired their lands, it had been determined that the only certain object of the covenant – construction of the golf course – was not feasible” (para 47).

Land Titles Act

48(1) There may be registered as annexed to any land that is being or has been registered, for the benefit of any other land that is being or has been registered, a condition or covenant that the land, or any specified portion of the land, is not to be built on, or is to be or not to be used in a particular manner, or any other condition or covenant running with or capable of being legally annexed to land.

. . .

(4) The first owner, and every transferee, and every other person deriving title from the first owner … is deemed to be affected with notice of the condition or covenant, and to be bound by it if it is of such nature as to run with the land, but any such condition or covenant may be modified or discharged by order of the court ….

(5) The entry on the register of a condition or covenant as running with or annexed to land does not make it run with the land, if the covenant or condition on account of its nature, or of the manner in which it is expressed, would not otherwise be annexed to or run with the land. (emphasis added)


The emphasized portions of section 48 make it clear that a covenant does not run with the land so as to bind future owners simply because the people creating it specify that it will (para 44). As Justice Goss noted (at para 20), the Alberta Court of Appeal held in Kolias v Condominium Plan 309 CDC, 2008 ABCA 379 (CanLII) at para 10, the Land Titles Act “preserves the common law respecting restrictive covenants.”

What is required for a covenant to run with land at common law was summarized by V DiCastri in Registration of Title to Land (Carswell, 1987) at 10-3 to 10-5, and subsequently adopted by numerous other cases (e.g., Westbank Holdings Ltd v Westgate Shopping Centre Ltd, 2001 BCCA 268 (CanLII) at para 16; Canada Safeway Ltd v Thompson (City), [1996] MJ No 393, [1996] 10 WWR 252 (Man QB) at para 20, affirmed [1997] MJ No 271 (Man CA)). Among those conditions is a requirement “that the covenant must be negative in substance . . .; no personal or affirmative covenant requiring the expenditure of money or the doing of some act runs with the land” (Russell v Ryan at para 21, emphasis added). The key question in this case was whether or not the covenant was negative in substance, i.e., could the covenant be complied with without “the expenditure of money or the doing of some act.” Determining the first issue — whether the covenant ran with the land — depended on deciding whether or not the covenant was negative.

Because it is a restraint on alienation, a restrictive covenant must be construed strictly (at para 24), and “[a]ny ambiguity about whether a restrictive covenant should apply … ought to be resolved in favour of the free use of the land” (at para 26). The parties’ intention to create a restrictive covenant “must be shown in clear and unambiguous language” (at para 24). Justice Goss also mentioned the Supreme Court of Canada decision in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII) for the proposition that a court must read an agreement “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract” (at para 25).

Despite citing Sattva’s approach to contract interpretation, Justice Goss was prepared to assume, without deciding, that the Restrictive Covenant in this case contained two severable covenants (para 40). The first was that the Golf Club lands “will be developed only for use as a golf course.” The second was that the Golf Club lands would be developed “for no other use … whereby the enhancement in value and enjoyment by the owners from time to time of the lands set out in Schedule “A” may be diminished.” She relied (at paras 37-39) upon Aquadel Golf Course Limited v Lindell Beach Holiday Resort Ltd, 2009 BCCA 5 (CanLII), reversing 2008 BCSC 284 (CanLII) for this approach, although she noted that the BC Court of Appeal held in that case that the covenants were neither severable nor negative.

In Aquadel, the BC Supreme Court had interpreted an agreement as containing three severable covenants: (1) not to use the land for any purpose other than as a golf course; (2) to maintain the golf course to an acceptable standard; and (3) to give certain persons a preferential rate for use of the golf course. The lower court held that the first covenant was negative in substance, but the second and third covenants imposed positive obligations. The BC Court of Appeal, however, held that first covenant was also positive in substance even though it used negative language because it required the property to be used only as a golf course, and there was nothing in the language or surrounding circumstances to suggest that doing nothing — i.e., leaving the land undeveloped — was intended (Aquadel at paras 16-17). The second and third covenants, which were clearly interrelated with the first covenant, were meaningless unless there was an obligation to use the land as a golf course, and so the covenants were not severable (Aquadel at para 18).

Justice Goss held (at para 39) that it was even clearer in this case, as compared to Aquadel, that the first covenant imposed a positive obligation to develop the Golf Club lands as a golf course. In Aquadel the language used was negative (“not to use the land for any purpose other than as a golf course”) whereas the language in this case was “clearly positive in substance” (“they will be developed only for use as a golf course”).

And what of the second covenant in this case – that the Golf Club lands would be developed “for no other use … whereby the enhancement in value and enjoyment by the owners from time to time of the lands set out in Schedule “A” may be diminished” – assuming it could be severed from the first? The question here, according to Justice Goss, was what “other use” might diminish the “enhancement in value and enjoyment by the owners” of the adjacent properties? On this question, Justice Goss referred to Podwin v Gondziola, 2004 SKQB 225 (CanLII), where the covenant in question prohibited the planting of trees or placing of objects which would “unreasonably obstruct” others’ view of the river. The judge in that Saskatchewan case held that covenant was likely unenforceable due to ambiguity and uncertainty. In this case, Justice Goss held that “it would be virtually impossible to determine with any certainty what development of the land, within the range of developments possible under the current bylaw, might ‘diminish the enhancement in value and enjoyment’ by the owners of the Schedule A lands” (at para 42). The answer would depend on “the purely subjective views of those owners” and therefore “it would be unenforceable as it is too vague and uncertain” (at para 42).


The common law requires a restrictive covenant be negative in substance. If it is positive, the covenant cannot run with the land so as to bind future owners. No matter whether it is worded positively or negatively, a covenant is positive if it requires “the expenditure of money or the doing of some act” (at para 21). This case, with its positively worded covenant that the lands “will be developed only for use as a golf course” is usefully compared to the negatively worded covenant in Aquadel with its promise “not to use the land for any purpose other than as a golf course”.

In Aquadel, the BC Court of Appeal held that the covenant was positive in substance, despite its negative wording, “because it required Whitlam to use the property only as a golf course, with related faculties, and as the location for two residences” (Aquadel at para 16). And because the first covenant was not severable and could not be read in isolation from the second and third covenants to maintain the golf course and to give some people a preferential golfing rate, the covenant could not be read as allowing a choice to allow the land to return to wilderness (Aquadel at paras 17-18).

In Russell v Ryan, the wording was positive and thus made it easier to find the obligation was positive in substance. The respondents argued that the covenant did not require a golf course to be built; it only prevented development for anything other than a golf course and the land could be left as undeveloped green space. Justice Goss, however, determined that the covenant required that the land “will be developed for use as a golf course”, holding that “the wording in this case is clearly positive in substance” because it imposes a positive obligation to develop the lands (para 39, emphasis in original).

I am not sure how wording can be positive in substance, rather than in form, as Justice Goss states. But I am sure that the positive form of the covenant in Ryan v Russell did make it easier to find the covenant was positive in substance. The interpretation in Aquadel was forced to rely heavily on the second and third covenants to find that the land could not be left undeveloped. Although Justice Goss did not rely on the second covenant, it is unlikely that considering the two together would have made a difference, because the second part of the covenant refers to the “enhancement” in value and enjoyment, suggesting the lands must be developed.

With those two covenants having been found to be positive in nature, one might ask what sort of covenants have been held to be negative in substance. Most of the Alberta examples of negative covenants are from cases involving building schemes, where the test for the validity of the covenant is different than it is for the Tulk v Moxhay (1848), 41 ER 1143 (Eng Ch Div) type of covenant we see in Russell v Ryan. However, because we are only considering whether a covenant is negative or positive and both of these types of covenants require negative covenants, the examples are still helpful:

  • “Each building on any of the listed lots shall be set back from the front property line a distance of not less than 25 ft. and side yards shall be at least 10% of the width of the lot.”

Despite the “imperative language of a positive flavour”, Justice Rawlins in Crump v Kernahan, 1995 CanLII 9145 (AB QB), held this covenant was “essentially negative in nature” (para 11). In order to comply with the covenant, the owner was not required to build; if he chose to build, certain restrictions applied.

  • “Only one family dwelling house and a private garage, attached or unattached to such dwelling house may be erected on each lot.”

In Lindner v. Chittick, 2010 ABQB 819 (CanLII) at para 31, Justice Lutz relied on Crump to state that, to be negative, a “covenant must prohibit”. As in Crump, “the covenant may not require the owner to build, but if the owner choses [sic] to build, the covenant may impose restrictions on how she or he will build.”

  • “THAT no dwelling house or any other private building shall be erected or stand at any time on any lot within 20’ from the side of the lot…”.

In Lim v. Titov, 1997 CanLII 14886 (AB QB), Justice Deyell, held that “[t]he language used to express the 20 foot sideyard restriction is negative and easily satisfies this element of the test”, unfortunately suggesting that the wording governs the substance. However, it is easy to see that this covenant could be complied with by simply not building because it is a prohibition.

  • “… that he will not erect, or use, or cause, or suffer, or permit to be erected on less than Two of the aforementioned lots more than One such dwelling house …”.

In Potts v. McCann, 2002 ABQB 734 (CanLII), Justice Slatter does not specifically address whether this covenant fulfills the requirement that it be negative (at paras 24 and 30). However, because he held the covenant was valid, he must have found it to be negative.

Four hundred and thirty-three years ago, in Spencer’s Case (1583), 5 Co Rep 16a, 77 ER 72 (KB), Sir Edward Coke lamented some of the difficulties within this area of law, referring to “the many differences taken and agreed concerning express covenants and covenants in law, and which of them run with the land, and which of them are collateral, and do not go with the land …”. If you think the distinction between covenants which are negative and those which are positive seems a fine one to draw, then you are in good company.

This post may be cited as: Jonnette Watson Hamilton, “Putting the Negative in Restrictive Covenants” (24 October, 2016), on-line: ABlawg,

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The Problem of Judicial Arrogance

Fri, 10/21/2016 - 10:00am

By: Alice Woolley

PDF Version: The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike deny the rationality and dignity of the “non-lawyer,” refuse to admit their own faults, and tend both to aggrandize official power and to subdue public criticism.

I wish I could disagree with Ms. Blatchford. But I can’t. I have to reluctantly concede the uncomfortable truth of her fundamental allegation: we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and – at the end of the day – judicial conduct that can be fairly described as arrogant.

I’ll begin with the expected caveat. I don’t think all judges are arrogant. I don’t even think most judges are arrogant. Indeed, for the purposes of my argument it can be true – and may be true – that no Canadian judge is an arrogant person.

But I do think three things. I think some judges act arrogantly. I think our system both encourages and does not discourage acts of judicial arrogance. And I think acts that demonstrate judicial arrogance create injustice.

Three recent examples support my point.

The first arises from the decision of Judge Denny Thomas to convict Travis Vader of second degree murder under s. 230 of the Criminal Code, a statutory provision that has been unconstitutional for 26 years. As cogently argued by Peter Sankoff, Judge Thomas’s decision reflects poorly on Parliament for its failure to amend the Criminal Code. It may also reflect poorly on Judge Thomas’s criminal law competency.

There is, though, another way to look at it – at least potentially, depending on what emerges about how the s. 230 error came to be. Not surprisingly, the Crown did not rely on s. 230 in its written argument. Even less surprisingly, nor did the defence. The question is, then, how did s. 230 come to be so central to the decision? At least one possibility is that Judge Thomas on his own volition, without asking for further submissions from the Crown or defence on its applicability, decided to apply a different provision of the Criminal Code than those that were argued. I do not know if this is what happened. But if it did, it raises a concern beyond the error itself. It would take a particular and troubling kind of confidence for a judge in an adversarial system of justice, which relies on the evidence and argument of the parties, to think that he knew enough of the law and the facts to decide what law properly applies without either.

Judge Thomas did not need Parliament to amend the Criminal Code (although it should have). He did not need to know that s. 230 was unconstitutional. All he needed to do was consult with the parties on the key legal issue he thought arose in the case before releasing his decision. If he did not, that failure – the failure to consider the possibility that the parties may know more than you do or that they may have something useful to contribute to your decision-making process – at minimum suggests a lack of humility, and might even be described as an example of judicial arrogance. And as a lack of humility that led to injustice – the injustice of a person being convicted pursuant to an unconstitutional provision.

The second example arises from the hearing into the conduct of Justice Robin Camp. At his hearing, a significant part of Justice Camp’s explanation for his conduct was that he did not know the law on sexual assault; that he had received inadequate training; that he had conducted only one sexual assault trial prior to the Wagar case which gave rise to the complaint against him; and that, in general, “I didn’t know what I didn’t know”. Yet recall for a moment what Justice Camp has conceded was inappropriate in his conduct of the trial, and for which he has apologized: that he asked inappropriate questions of the complainant about her conduct while she was testifying, he made inappropriate personal comments to the prosecutor in response to her argument, and he fell prey to myths about sexual assault.

Given his defence and his acknowledged misconduct, consider this: Justice Camp knew that he had never studied criminal law or constitutional law at a Canadian law school. He knew that he had never practiced in those areas as a lawyer in Canada. He knew this was only his second sexual assault trial. He claimed that he had not received extensive training in the area. He also knew – he must have known – that as a judge in an adversarial trial one option open to him was to sit silently and quietly and listen to the witnesses and the lawyers, making such rulings as he was asked or required to make, and issuing a decision at the end. But Justice Camp didn’t do that. Instead he was actively interventionist, asking questions of the complainant, giving personal advice to the accused on his dealings with women in the future, and aggressively questioning the prosecutor.

This suggests that the problem is not just that Justice Camp didn’t know what he didn’t know. It was that he assumed that he knew a great deal. He assumed he knew enough to be interventionist in an adversarial proceeding – to not just be a judge, but to be an active and interventionist judge. Despite every reason to know that he was ignorant, he assumed he was one of, if not the, most knowledgeable person in the room. Justice Camp needed to know what he didn’t know. But, even more, he needed not to assume that he knew a lot. Making that kind of assumption is, I would suggest, a pretty good example of judicial arrogance. And, again, one that obviously led to injustice as evidenced by the Court of Appeal’s reversal of Mr. Wagar’s acquittal and the need for a new trial.

The third example is less extreme than the first two and is not directly linked to injustice. But it’s a problem I’ve written about before and in my view it is both troubling, and suggests the more systemic problem of a culture where conduct that looks like arrogance is permitted, and even celebrated. In the recent decision of the Supreme Court in Canada (Attorney General) v. Igloo Vikski Inc. 2016 SCC 38, the majority, in a judgment written by Justice Brown, invoked the spirit of Lord Denning to begin its decision like this:

In wintertime ice hockey is the delight of everyone.  Across the country, countless players of all ages take to ice rinks and frozen ponds daily to shoot pucks at the net.  Often the puck is stopped or turned aside by a goaltender blocking it with a blocker or catching it with a catcher.  This is notoriously difficult business.  The goaltender’s attention must remain fixed on the play, and not on off-ice matters.  His or her focus must not drift to thoughts of the crowd, missed shots or taunts from opponents.  And, certainly, the goaltender should strain to avoid being distracted by the question before the Court in this appeal — being whether, for customs tariff classification purposes, he or she blocks and catches the puck with a “glove, mitten or mitt”, or with an “article of plastics” (para. 1).

The argument in favour of decisions like this is they make the Court’s ruling accessible. Some have described this judgment as awesome. I’m sure it would lighten the dullness of life for law students required to read it. In my view, however, judgments like this also do something much less appealing and much more troubling – they turn a decision about the rights and interests of parties before the court into an opportunity to show off the cleverness and erudition of the judge.

Don’t get me wrong. I don’t think injustice arose from this example of judicial wit and rhetorical sprightliness. I too liked reading Lord Denning’s decisions in law school. My guess is the judge’s intentions here were well-meaning and light-hearted. But I nonetheless think it is a bad example to set. It reinforces the systemic judicial arrogance that Ms. Blatchford so vigorously skewers.

When a decision gets to the Supreme Court so much is at stake for the parties. Tens if not hundreds of thousands of dollars in legal fees. The substantive issue in the case. Sometimes their liberty. And the judge who uses that moment – where everything is at stake for the parties and nothing is at stake for him – to be clever and witty for a purpose extraneous to the decision itself has acted improperly. A judge can be clever and erudite. He can even be funny. But he should do so only where necessary to achieve justice in the matter at hand, not to entertain himself or bolster his reputation. Otherwise he has put himself and his interests in the decision and, by doing so, has contributed to a culture where arrogance, rather than humility, becomes the norm.

What follows from all of this? As I acknowledged earlier, I am not labeling all judges as arrogant. In two of the examples here the behaviour could perhaps be better described as indicating a lack of humility than as an example of arrogance. And even where a judgment or decision looks arrogant, that doesn’t mean that the judge who made it is an arrogant person. We are more than the things that we do from time to time, and our behaviour is conditioned by the expectations and culture of the roles that we play.

But I do want to say unequivocally that judicial arrogance is wrong. It is a wrong that gets committed too often and called out too little. Judges need to strive for humility – to recognize it as a virtue. Judges may be independent, but their independence exists to deliver justice to the public, not to give judges a public forum to say what they want, when they want, to whom they want. It requires, in short, humility. And in humility’s absence I cannot blame life-long observers like Ms. Blatchford from “falling out of love with the Canadian justice system (especially judges”).

This post originally appeared on Slaw and is cross-posted with permission.

This post may be cited as: Alice Woolley, “The Problem of Judicial Arrogance” (October 21, 2016), online: ABlawg,

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A Supreme Folly

Thu, 10/20/2016 - 10:00am

By: Frances Woolley

PDF Version: A Supreme Folly

Matter Commented On: The Bilingual Requirement for Supreme Court of Canada Justices

Last August, Prime Minister Justin Trudeau announced that, in future, only candidates who are “functionally bilingual” in French and English will be recommended for positions on the Supreme Court of Canada. With the information released subsequent to the nomination of Malcolm Rowe to the Court, we now have some sense of what this means. At a minimum, a functionally bilingual candidate should be able to read and understand court materials in both English and French, as well as discuss legal matters with their colleagues, converse with counsel in court and understand oral submissions in both languages.

Realistically, it is hard to imagine anyone being able to understand complex legal reasoning in both official languages – and, furthermore, to demonstrate convincingly that they had the ability to do so – unless they already had some experience using both English and French in a work environment. Yet opportunities to function in both French and English are unevenly distributed across the country, raising the possibility that the new bilingualism requirements will significantly alter the pool of potential Supreme Court appointees.

To get some idea of how requiring functional bilingualism will change the face of the Supreme Court, I used the public use micro file (PUMF) of Canada’s 2006 Census to estimate just how many people use both official languages at work on a regular basis, and thereby gauge the percentage of workers who are currently functionally bilingual. Table 1 shows my estimates, based on a sample of over four hundred thousand Canadian workers between the ages of 25 and 75, of the percentage of Canadians who regularly use both official languages at work.

Table 1: Percentage of Canadian residents who regularly use both French and English in the workplace, 2006, by region. Estimated percentage With 95% confidence, the true figure is No lower than No higher than Atlantic provinces 9.4% 9.0% 9.7% Quebec 30.1% 29.8% 30.4% Ontario 4.6% 4.5% 4.7% West and north 1.4% 1.3% 1.4% Number of observations: 408,436. Calculated from 2006 Census PUMF using the province (PR) and language of work (LW) variables.

The point of this table is that there are huge regional disparities in the use of Canada’s two official languages in the workplace – and hence in the opportunities to acquire and maintain functional bilingualism. Fewer than two percent of people living west of Ontario or in the territories use both English and French in the workplace on a regular basis, compared with 30 percent of people living in Quebec.

Now it could be objected that these numbers include all workers from truck drivers to taxidermists, hence are of limited relevance when thinking about the bilingualism of potential Supreme Court nominees. Unfortunately the Census public use micro file cannot used to assess directly the language capabilities of lawyers, because it does not contain sufficiently finely-grained educational and occupational information. However, it is possible identify a group of Census respondents who are, if not lawyers, at least “lawyerlike”, and find out how many of these are likely to be functionally bilingual.

“Lawyerlike” respondents to the 2006 Census are people who:

  • are between 25 and 75 years old
  • are employed or self-employed
  • are Canadian citizens or landed immigrants
  • if immigrants, moved to Canada before age 20 (while this restriction eliminates some lawyers, it eliminates more non-lawyers)
  • have as their highest level of education a bachelor’s degree, a master’s degree, or a university certificate or diploma above the bachelor’s level
  • studied “Social and behavioural sciences and law” in their highest degree
  • work in occupational category “E0: Judges, Lawyers, Psychologists, Social Workers, Ministers of Religion, and Policy and Program Officers” or “E2: Paralegals, Social Services Workers and Occupations in Education and Religion [excluding teachers and professors]”
  • earned over $40,000 a year in 2005 (broad definition), over $80,000 a year (middle definition), or over $100,000 a year (narrow definition).

Of the 530,231 respondents between the ages of 25 and 74 in the public use census microfile, just 2,488 are “lawyerlike” in that they meet all of the above criteria. If we restrict our group to those earning $80,000 a year in 2005, just 1,228 are lawyerlike. So while the lawyerlike group encompasses other professionals, like social workers, it is selective enough that the language capabilities of this group should be broadly indicative of the functional bilingualism of the Canadian legal community.

So just how many of these lawyerlike respondents are demonstrably functionally bilingual? Table 2 gives some indication:

Table 2: Percentage of “lawyerlike” respondents who regularly use both French and English in the workplace, 2006, by region. Estimated percentage With 95% confidence, the true figure is No lower than No higher than Atlantic provinces 15.6% 9.4% 21.7% Quebec 43.1% 39.3% 47.0% Ontario 13.7% 11.6% 15.8% West and north 2.1% 1.0% 3.2% Number of observations: 2,488. Calculated from 2006 Census PUMF using the province (PR) and language of work (LW) variables.

Comparing Table 2 and Table 1, what is striking is that, when we narrow down our focus of analysis to more professional, lawyerlike workers, the number of people using both English and French in the workplace rises dramatically in Quebec, from 30 percent to 43 percent of workers. It also becomes non-trivial – around 14 to 16 percent – in the Atlantic provinces and in Ontario. Yet in the West and the North, there are still only around two percent of workers reporting using both French and English regularly in the workplace – an increase of just 1/2 of one percent over the number reported in Table 1.

It could be argued that the numbers in Table 2 over-estimate the extent of bilingualism within the east-of-Manitoba legal community. The “lawyerlike” group identified above includes, for example, federal government policy and program officers, who are much more likely than the typical Canadian to have a bilingual workplace.

One way to narrow the “lawyerlike” group down, and make it more representative of potential Supreme Court nominees, is to take advantage of the fact that top-ranking legal professionals typically have relatively high earnings. Table 3 attempts to eliminate some of the non-lawyers in the “lawyerlike” group by focusing on just the functional bilingualism of lawyerlike people with market incomes (i.e. earnings plus investment income) above $80,000 a year in 2005.

Table 3: Percentage of “lawyerlike” respondents earning over $80,000 annually who regularly use both French and English in the workplace, Canada, 2006, by region. Estimated percentage With 95% confidence, the true figure is No lower than No higher than Atlantic provinces 15.7% 7.1% 24.3% Quebec 57.6% 51.5% 63.7% Ontario 14.6% 11.7% 17.5% West and north 1.8% 0.4% 3.2% Number of observations: 1,228. Calculated from 2006 Census PUMF using the province (PR) and language of work (LW) variables.

With this narrower definition of “lawyerlike”, the regional differences in functional bilingualism become even more pronounced. Over half of the Quebec respondents in this more elite group of lawyerlike individuals used both French and English in the workplace regularly, compared to fewer than two percent of those in the West and the North.

An even more refined definition of “lawyerlike” individuals would include only those with market incomes above $100,000 in 2005. When I repeated the analysis for this group – comprising just 938 respondents – I obtained very similar patterns of language use to those shown in Table 3. Over half of elite lawyerlike respondents living in Quebec use both French and English in the workplace, compared to fewer than 2 percent in the western and northern parts of the country.

When Prime Minister Justin Trudeau’s government announced the new functional bilingualism requirement for Supreme Court justices, it also reiterated its commitment to nominating appointees who reflect a diversity of backgrounds and experiences. Yet it will face hard trade-offs between diversity, excellence, and bilingualism. Even if the numbers reported in Table 3 seriously underestimate the extent of functional bilingualism in Western Canada – even if there are, say, five times as many functionally bilingual lawyers as these numbers suggest – the new bilingualism requirement will eliminate around 90 percent of potential Supreme Court nominees from the West and the North. It is hard to believe that it is possible to reduce the size of the candidate pool so dramatically without compromising either excellence or diversity or both.

Achieving French-English bilingualism requires appropriate opportunities, as well as ability and effort. While linguistic abilities may be fairly evenly distributed across the country, opportunities to learn both French and English are not. A family in Trois-Rivières can provide their children with a 100 percent English-immersion experience by driving three hours to northern Vermont. For a Vancouver family, the nearest authentic French-immersion experience is a four-and-a-half-hour flight away. For people whose first language is either English or French, achieving bilingualism requires learning a second language. For the many Canadians who grew up speaking a “non-official” first language, achieving functional English-French bilingualism means mastering three languages, not two. Since visible minority, Aboriginal and immigrant Canadians are disproportionately likely to have a non-official first language, it is particularly challenging for them to achieve French-English bilingualism.

In Table 4 I show just how much external and cultural factors influence achievement of bilingualism. Because I want to widen the scope of the analysis to include issues relating to identity, I use a broader definition of bilingualism here, categorizing anyone as bilingual if they can “speak English or French well enough to conduct a conversation”. The best way of thinking about the numbers in Table 4 is as a measure of the pool of people who could, with sufficient effort, potentially become functionally bilingual. By way of contrast, the earlier tables were trying to get at the number of people who are currently functionally bilingual.

Table 4: Percentage of adults aged 25 to 74 able to speak both English and French well enough to have a conversation in that language, Canada, 2006   All Quebec Rest of Canada Number of respondents All 18.7% 45.0% 10.1% 525,933 Visible minority 9.6% 46.9% 4.3% 75,061 Immigrant 12.2% 52.5% 5.8% 127,942 Aboriginal 11.8% 38.9% 8.7% 16,136 “Lawyerlike” 37.6% 72.1% 25.8% 2,488 Source: Calculated by the author from the 2006 Census public use micro file.

Unsurprisingly, immigrant, visible minority and Aboriginal Canadians are significantly less likely than the rest of the Canadian population to be bilingual in both French and English. What is perhaps more interesting, however, is the interaction between region of residence, ethnic identity, and bilingualism. In Quebec, immigrant and visible minority Canadians are actually more likely than the rest of the population to be bilingual, whereas in the Rest of Canada, the reverse is true. Fewer than one in twenty visible minority Canadians outside Quebec is capable of holding a conversation in both English and French.

I presume that the idea of a having functionally bilingual Supreme Court is to promote better and fairer decision-making: any case could be heard by any judge, thereby eliminating any systematic disparities in judgments that could arise if only certain judges heard certain types of cases. Those appearing before the Court would be free to use their language of preference, either French or English, without worrying that their case could be compromised.

Yet while, as an ideal concept, a bilingual court promotes inclusivity, the reality is elitist. Only certain people, who have had access to certain experiences throughout the course of their life, are ever likely to meet the bilingualism requirement. Yes, functional bilingualism will ideally mean that those appearing before the court have a genuine choice of language (as long as that choice is French or English). Personally I am more concerned about the choice of judges. It is cold comfort to a person appearing before a court without deep knowledge of western Canadian institutions or constraints, without visible minority or Aboriginal representation, without a single member who has a science or mathematics background, to know that their position can be imperfectly comprehended in either official language.

Guest blogger Frances Woolley is a Professor of Economics at Carleton University. She tweets @franceswoolley. This post also appeared on Worthwhile Canadian Initiative and is cross-posted with permission.

This post may be cited as: Frances Woolley , “A Supreme Folly” (October 20, 2016), on- line: ABlawg,

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This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights

Wed, 10/19/2016 - 10:09am

By: Jennifer Koshan

PDF Version: (Currently unavailable)

Case Commented On: Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al, SCC Case No 36636, leave to appeal granted from Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII)

On Monday, the Prime Minister’s Office announced that Justice Malcolm Rowe of the Court of Appeal of Newfoundland and Labrador has been nominated to the Supreme Court of Canada. A question and answer session with Justice Rowe will take place on Tuesday October 25, 2016 at the University of Ottawa, and the PMO has invited two law students from every Canadian law school to attend. We will be blogging about the Q & A event on ABlawg, so stay tuned for that.

Provided Justice’s Rowe’s nomination is accepted, there will soon be a full slate of justices on the Supreme Court to hear this fall’s appeals. The Globe and Mail ran an interesting article a couple of weeks ago noting some of this session’s more interesting hearings. One case that was not mentioned is one that we have been watching on ABlawg – Stewart v Elk Valley Coal (see here, here and here – the case also goes by the name of Bish, the union member who filed a complaint on behalf of Stewart). Intervener facta were filed in Stewart on October 7, and there is an important set of voices missing from those arguments. On August 12, 2016, Justice Russell Brown denied intervener status to the Canadian Human Rights Commission and the Ontario Human Rights Commission, the Manitoba Human Rights Commission, the Saskatchewan Human Rights Commission and the Yukon Human Rights Commission, who had applied to intervene jointly. He granted intervener status to:

  • The Council of Canadians with Disabilities and the Empowerment Council (jointly);
  • The United Nurses of Alberta;
  • The Construction Owners Association of Alberta, Construction Labour Relations – an Alberta Association, Enform Canada, the Electrical Contractors Association of Alberta, the Mining Association of Canada, the Mining Association of British Columbia, the Ontario Mining Association, the Northwest Territories and Nunavut Chamber of Mines and the Saskatchewan Mining Association (jointly);
  • The Ontario General Contractors Association, the Ontario Formwork Association and the Greater Toronto Sewer and Watermain Contractors Association (jointly).

The fact that Justice Brown had been critical of human rights commissions while writing for his law school’s blog, which was revealed at the time of his appointment to the Supreme Court in 2015, should not have swayed his decision. However, because reasons typically are not given for rejecting intervener applications, we do not know the basis for Justice Brown’s decision to exclude the human rights commissions. What might the human rights commissions have added to the appeal?

The Supreme Court provides the following summary of the Stewart case:

Human Rights – Right to equality – Discrimination on the basis of mental or physical disability – Whether the correct test for establishing prima facie discrimination in the context of mental disability should be applied differently to those suffering from addiction-related disabilities – Whether there is inter-jurisdictional consistency in the application of that legal test and across factual contexts – Whether the correct test to establish the defence of justification of a discriminatory standard as a bona fide occupational requirement should be applied differently to addiction-related disabilities – Whether there is inter-jurisdictional consistency in the application of that legal test and across factual contexts – British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees Union, [1999] 3 S.C.R. 3 – Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 – Alberta Human Rights Act, R.S.A. 2000 c. A-25.5, s. 7.

A worker was terminated from his employment with Elk Valley Coal Corporation when he tested positive for cocaine after a loader truck he was operating struck another truck. He had previously attended a training session and acknowledged his understanding of the employer’s policy of allowing workers with a dependency or addiction to seek rehabilitation without fear of termination, provided they sought assistance before an accident occurred. The worker admitted to regular use of cocaine on his days off but didn’t think he had a drug problem prior to the accident and testing. His union filed a complaint with the Alberta Human Rights Commission, claiming the worker was fired on account of his addiction disability. The tribunal concluded that while the complainant’s drug addiction was a disability protected under the legislation, there had been no prima facie discrimination. The worker was not fired because of his disability, but because he failed to stop using drugs, stop being impaired at work, and did not disclose his drug use. Alternatively, the tribunal held that the employer had shown accommodation to the point of undue hardship.

The Court of Queen’s Bench of Alberta dismissed the appeal from the decision of tribunal but disagreed with the alternative conclusion that the worker had been reasonably accommodated. A majority of the Court of Appeal of Alberta dismissed the appeal and allowed the cross-appeal.

Under section 57(2) of the Rules of the Supreme Court of Canada, SOR/2002-156, a motion for intervention shall:

(a) identify the position the person interested in the proceeding intends to take with respect to the questions on which they propose to intervene; and

(b) set out the submissions to be advanced by the person interested in the proceeding with respect to the questions on which they propose to intervene, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties (emphasis added).

Given that two of the issues in the case concern the “inter-jurisdictional consistency” in the application of the key legal tests in human rights cases – the test for establishing prima facie discrimination and the test for establishing a bona fide occupational requirement – one would have thought that human rights commissions could have provided a useful perspective. The test for prima facie discrimination in particular has been the subject of much toing and froing since the 2000s, due in large part to the influence the test for discrimination under the Charter has had in human rights matters, such that considerations of stereotyping and arbitrariness have crept in (see my article on that subject here). Recent decisions of the Supreme Court in cases such as Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) have not explicitly clarified the test in spite of calls to do so, leading to ongoing confusion at the lower court and tribunal levels, as exemplified in Stewart and an earlier Alberta Court of Appeal case on addiction-related disabilities, Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267 (CanLII), leave to appeal denied, 2013 CanLII 15573 (SCC).

The Alberta Human Rights Commission, which is a respondent in Stewart, restricts its factum to the issue of standard of review. This issue is also an important one – as indicated by the Federal Court of Appeal in Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78, there is a “sorry state of the case law and [a] lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (see also here for Shaun Fluker’s post on the handling of standard of review in Stewart). As important as this issue is, Justice Brown’s decision to deny intervener status to the other commissions means that the Stewart appeal lacks their collective expertise on the inter-jurisdictional (in)consistency in the key legal tests in human rights cases.

The intervener factum of the Council of Canadians with Disabilities and the Empowerment Council focuses on the contextual application of the test for discrimination and the bona fide occupational requirement test to persons with addiction-related disabilities. It is also a very important submission, but it does not deal with inconsistencies in the actual test for prima facie discrimination.

Predictably, the factums of the employer-side interveners – The Construction Owners Association of Alberta, Construction Labour Relations – an Alberta Association, Enform Canada, the Electrical Contractors Association of Alberta, the Mining Association of Canada, the Mining Association of British Columbia, the Ontario Mining Association, the Northwest Territories and Nunavut Chamber of Mines and the Saskatchewan Mining Association (jointly); and The Ontario General Contractors Association, the Ontario Formwork Association and the Greater Toronto Sewer and Watermain Contractors Association (jointly) – support a test for discrimination that includes considerations of arbitrariness and stereotyping, contrary to the traditional approach to prima facie discrimination (see Factum of the Construction Owners Association of Alberta et al at para 7; Factum of the Ontario General Contractors Association et al at para 7). I am not saying these factums are unimportant – they highlight the challenges in balancing the interests of employees with addictions and the interests of others in the context of safety-sensitive workplaces. But these are concerns that go to whether drug and alcohol policies can be defended as bona fide occupational requirements, and should not be used to displace or subvert the proper test for discrimination.

The only intervener factum which deals with the test for discrimination is that of the United Nurses of Alberta (UNA). It supports the Appellant’s position that a majority of the Alberta Court of Appeal misstated the test for discrimination in Stewart, in part by relying on considerations of stereotyping and arbitrariness, which improperly import employer intent into the inquiry and make it impossible to prove adverse effects discrimination (at para 21). The UNA also makes a compelling argument that many cases involving addiction-related disabilities have been improperly dealt with via a disciplinary model, which treats addiction-related conduct as culpable rather than viewing it through a human rights lens (at paras 5-9). More generally, the UNA compares the approach taken in addiction-disability cases across Canada, providing some basis for the Supreme Court to consider the inconsistencies in applying the test for prima facie discrimination in this context.

This comparative approach, and the need for tribunals and courts to interpret the test for discrimination broadly and purposively regardless of the grounds in question, are surely matters on which the human rights commissions could have usefully contributed given their unique roles in the human rights system.

This post may be cited as: Jennifer Koshan, “This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights” (October 19, 2016), on-line: ABlawg,

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Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

Fri, 10/14/2016 - 10:00am

By: Erin Sheley

PDF Version: Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

Case Commented On: Regina v Sanaee, 2016 ABCA 289 (CanLII)

The year 2016 has been bleak for animals in Canada. In September, Montreal passed a new city bylaw banning the adoption of new pitbulls and pitbull mixes, and imposing stringent licensing and muzzling requirements on currently-owned dogs under threat of euthanasia. (See City of Montreal Regulation 16-060). And Parliament just voted down proposed amendments in Bill C-246, the Modernizing Animal Protections Act, which would have made modest changes to federal legislation such as banning the importation of shark fins removed from living sharks and products made from dog or cat fur. But on September 28, 2016 the Alberta Court of Appeal provided some good news for animal welfare supporters.

In R v Sanaee, 2016 ABCA 289 (CanLII), the Court of Appeal considered the appeal of a dog trainer convicted of two counts of causing unnecessary pain, suffering or injury to an animal, contrary to section 445.1(1)(a) of the Criminal Code, RSC 1985, c C-46. The facts developed at trial showed that, on two occasions, Mr. Sanaee had used an electric cattle prod to discipline dogs in his care. On one occasion he had used it in the dog’s home, as part of training to curb food aggression (at para 3). After being stunned by the prod the dog “yelped and ran into the bathroom, where he stayed for 10 minutes with his tail between his legs” (at para 4). On the second occasion Mr. Sanaee was leading a community dog walk during which, according to the testimony of multiple witnesses, he used the cattle prod on a pitbull who had not been displaying any signs of violence (at para 5). In that case the dog “yelped or cringed and appeared to be in a lot of pain each time the cattle prod was used on it” (at para 5).

At trial the Crown led expert testimony from a veterinarian who gave the opinion that a cattle prod is excessively painful for use on dogs as it is made for adult cattle who are much larger and have thicker skin (at para 6). In addition, an animal behavioral consultant testified that a cattle prod is not considered an appropriate tool for dog training (at para 6). Mr. Sanaee did not present expert opinion evidence of his own. Instead he testified that he had not in fact used a cattle prod on either occasion, and that on the first occasion he had not even brought one to the dog’s residence (at para 7).

After the trial judge rejected Mr. Sanaee’s evidence and sentenced him to six months on each count, to be served concurrently, he appealed on two grounds (at para 10):

  1. That the trial judge erred by relying on expert opinion evidence outside the scope of the witness’s expertise and;
  2. That the trial judge erred by not considering whether the appellant acted without a colour of right.

As to the first point, Mr. Sanaee argued that to show the element of “unnecessary” pain under section 445 the Crown would have needed to establish through expert testimony that the cattle prod in question “was capable of delivering a shock of ‘X amperage and that the expert ought to have been able to establish that dogs feel pain at X amperage’” (at para 14). The trial judge had stated in her reasons that she was not required to rely on expert testimony to convict Mr. Sanaee in the first place. The Court of Appeal agreed. The Court rejected Mr. Sanaee’s argument on the grounds that multiple lay witnesses testified to the physical manifestations of pain exhibited by both dogs (at para 15).

It has been established since R v Graat, [1982] 2 SCR 819,1982 CanLII 33 that lay witnesses are competent to testify to opinions based on “compendious” facts such as bodily plight or emotional state. (Graat at p 835). In that case, a police officer testified to the accused’s intoxication based on his physical observations. As Justice Dickson then observed: “I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.” (at p 837). Graat has come to stand for the principle that lay witnesses may, rather than simply providing a laundry list of purely physical observations, synthesize those observations into an opinion about basic emotional and physical states.

In applying the Graat rule to Sanaee, the Court of Appeal implicitly rejected a very old myth about animal suffering: namely, that animals cannot feel pain in the way that human beings can. Seventeenth-century philosopher René Descartes posited that animals lack consciousness, and that assumption gave rise to a centuries-long justification for ignoring their suffering in clinical and other settings. Until very recently, scientists who asserted that animals do feel pain like humans, based on their analogous physical responses, were told they had the burden of affirmatively proving it. See Bernard Rollin, The Unheeded Cry: Animal Consciousness, Animal Pain, and Science (New York: Oxford University Press, 1989) at p 117-118. As science journalist Stephen Budiansky argued as recently as 1998, “sentience is not sentience, and pain isn’t even pain…Our ability to have thoughts about our experiences turns emotions into something far greater and sometimes far worse than mere pain…Consciousness is a wonderful gift and a wonderful curse that…is not in the realm of the sentient experiences of other creatures.” (Budiansky, If a Lion Could Talk: Animal Intelligence and the Evolution of Consciousness (New York: Free Press, 1998) at p 193-194)

In more recent years there appears to be greater scientific support for the proposition that animals do in fact feel pain in the same manner that humans do – a fact that would seem obvious to any pet owner who has ever inadvertently stepped on their companion’s tail. While it may therefore also seem obvious that a human witness should be able to accurately report the manifestations of physical suffering in an animal, this assumption has been so controversial throughout much of the modern history of science that any judicial recognition of the fact is deeply significant. In rejecting Mr. Sanaee’s argument on this head, the Court of Appeal also rejected a Cartesian binary that has justified a great deal of cruelty to animals.

Mr. Sanaee raised his second issue for the first time on appeal (at para 17). He claimed he acted with colour of right under section 429(2) of the Criminal Code, which provides a defence to offences under sections 430-466 of the Code where the accused can show “that he acted with legal justification or excuse and colour of right.” (at para 17). The defence of colour of right generally arises in cases involving property offences – where the accused had a mistaken but genuine belief in legal permission to make use of another person’s property. Here Mr. Sanaee tried to argue that his use of the cattle prod was within the scope of permission granted by the owners of the dogs he was working with.

The Court quickly dispatched with that theory on the grounds that the appellant had failed to raise it at trial (at para 18). Indeed Mr. Sanaee had testified, not that he was given permission to use the prod, but that he had not in fact used the prod at all (at para 17). As a result, the Court held that the defence of colour of right had no air of reality, as there was no evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true (at para 21, citing R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 29 at para 49).

While this procedural defect resolved Mr. Sanaee’s second claim as a matter of law, the Court, in obiter, made an even more significant statement about its substantive merits:

Belief by the appellant that he was entitled, in law, to inflict unnecessary pain in some circumstances does not create a “colour of right” to do so. This is a mistake of law. Further, even if a dog owner consented to or acquiesced in the use of a cattle prod, an owner cannot lawfully consent to the infliction of unnecessary pain (at para 23).

Had Mr. Sanaee raised the defence at trial, he would have had a plausible argument based on statutory interpretation. Section 429 creates the colour of right defence for the fairly small number of offences in Part XI of the Code. He could have therefore argued that Parliament explicitly intended for it to apply to each of them. But the Court rejected that reading, stating, essentially, that one cannot be said to believe in colour of right to do something inherently illegal. The belief that one has been granted such a right is therefore a mistake of law, and not a defence at all. In further stating that even actual consent by the owner would not provide a defence the court recognizes that the animal cruelty offence created by Section 445 confers protection on animals beyond their intrinsic property value to their owners. Rather, the animal itself is the beneficiary of the protection.

In just a few words of obiter, then, the Court touches on the massive controversy at the heart of animal protection legislation: can animals have rights? To avoid answering the rights question, legislators and commentators generally conceive of animal welfare laws as protecting the public morality, in the same way as vice offences. We don’t need to ask the uncomfortable question if we recognize a public moral interest in prohibiting unnecessary cruelty in our society. Yet the Court does not mention the public interest at all. It simply notes that an owner cannot waive their pet’s freedom from unnecessary pain secured by section 445 of the Code. Is this implicit recognition of a “right”? Perhaps not in the way we understand rights as immutable human freedoms secured by constitutional documents. But in the weaker sense of a legislatively conferred benefit flowing to a specific party, it certainly sounds like it.

In Sanaee, therefore, in only four short pages of reasons, the Alberta Court of Appeal drew some fairly significant conclusions about the legal and moral status of animals in Alberta. Those who seek to use the existing laws to better protect our animal companions have a significant new precedent on their side. Whether this case will prove generative remains to be seen, but it is a bright spot at an otherwise low point for animal protection.

This post may be cited as: Erin Sheley, “Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws” (October 14, 2016), on-line: ABlawg,

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Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation

Thu, 10/13/2016 - 10:00am

By: Nigel Bankes

PDF Version: Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation

Decision Commented On: Re Walter Energy Canada Holdings, Inc., 2016 BCSC 1746 (CanLII)

In 2002 the Supreme Court of Canada handed down its decision in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (CanLII) in which it confirmed that a gross overriding royalty (GORR) carved out of a working interest in land was capable of subsisting as an interest in land as a matter of law. Whether any particular GORR created an interest in land, or simply a contractual claim, depends upon the intentions of the parties as revealed in the language adopted by the parties to describe the GORR. There is presumably no objection to expressing this intention with words such as “the parties intend that the right and interest created by clause x of this agreement is to be an interest in land” – so long as this intention is not contradicted by other language in the agreement when construed as a whole in accordance with the usual rules on the interpretation of contracts. See, Nigel Bankes, Private Royalty Agreements: A Canadian Viewpoint, Rocky Mountain Mineral Law Institute (2003). While Dynex definitively settled the issue of principle (can a GORR as a matter of law ever be an interest in land) it still requires an analysis of the intentions of the parties in any particular case, although this should be easier to demonstrate for post-2002 agreements than for pre-2002 agreements. That said, the matter had been widely litigated during the previous 40 years, and counsel should at least have been aware, well before then, of the need to use language appropriate to creating an interest in land rather than a contractual interest – if that was indeed the intention of the parties.

The present case involved a GORR pertaining to certain coal mining licences in British Columbia. The agreement (the GRA) was executed in 2000 by WCC and three geologists, including Mr. James, in return for their assistance in identifying and acquiring the coal properties in question. The Walter Group is the successor in interest to WCC (by way of an acquisition of shares) and, as the petitioners in the case, had filed for protection under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (CCAA) (for the background see Walter Energy Canada Holdings, Inc. (Re), 2016 BCSC 107 (CanLII)). In this application, the petitioners were seeking approval of a transaction which would see the sale of the petitioners’ mining properties to Conuma Coal Resources. As part of the proposed asset purchase agreement (APA) the parties made it clear that the GRA was “an excluded contract” and that Conuma would not be assuming responsibility for it. Mr. James took the view that this was not an option which was open to the petitioners and Conuma on the basis that the GRA accorded Mr. James and the other parties interested in the GORR an interest in land which ran with the assignment of the coal licences.

The GRA provided in relevant part as follows:


A.       The Company has made application for and expects to become the beneficial owner of a 100% interest in and to certain coal interests in the West Brazion, Burnt River, Wolverine and Mount Spieker properties… (the “Properties”).

B.      Each of the Investors [Mr. James et al] have assisted the Company in acquiring and maintaining the Properties;

C.     The Company wishes to pay a royalty to the Investors for the Investors’ contributions on the terms and conditions herein contained.

THIS AGREEMENT WITNESSES THAT in consideration of the payment by the Purchaser to the vendors of $1.00 and other good and valuable consideration, receipt of which is hereby acknowledged, the parties mutually covenant and agree as follows:


2.1      As consideration for advancing the funds, the Company will pay a royalty (the Royalty”) of one percent (1%) of the price bracket (FOBT at Port) for all product tonnes produced from the West Brazion, Mount Spieker and Wolverine coal properties on a quarterly basis to the Investors as set out in Schedule “2.1″…


3.1      The Company represents and warrants to and covenants with the Investors as follows:


(c)       the Company is or will be the beneficial owner of all of the coal licenses comprising the Properties (the “Coal Licenses”), free and clear of all liens, charges and claims of others and no taxes or rentals are or will be due in respect of any thereof;


4.1      Upon the Coal Licenses being granted and recorded under it in the Company’s name, the Company will maintain the Coal Licenses in good standing with the mining recorder, or such other entity with jurisdiction over such matters.

4.2      In the event that any of the Coal Licenses comprising the Properties are not granted or the Company decides to cancel any applications prior to the Coal Licenses being granted, the Investors will be repaid proportionately immediately upon the funds being returned by the government.

4.3      Any forfeiture of the Coal Licenses shall be by mutual consent of the Parties to this Agreement, and such consent shall not be unreasonably withheld. In the event that the Company forfeits the Coal Licenses, the Company will assign the Coal Licenses to the Investors for a minimum period of 30 days prior to the date the forfeiture is to become effective.


8.1      This agreement may not be assigned without the written consent of all the parties, which consent shall not be unreasonably withheld.

9.      GENERAL

9.1      This Agreement will enure to the benefit of and be binding upon the parties and their respective successors, heirs, executives, administrators and permitted assigns.

Justice Fitzpatrick carefully considered the main pre- and post-Dynex cases (including Vandergrift v. Coseka Resources Ltd., (1989) 67 Alta LR (2d) 17, 1989 CanLII 3163 (AB QB)St. Lawrence Petroleum Ltd. v Bailey Selburn Oil & Gas Ltd. and H.W. Bass & Sons, Inc., 1963 SCC 76 (CanLII), [1963] SCR 482, Saskatchewan Minerals v Keyes, 1971 SCC 183 (CanLII), [1972] SCR 703,Vanguard Petroleums Ltd. v Vermont Oil & Gas Ltd., [1977] 2 WWR 66 (Alta. SC), 1977 CanLII 648 (AB QB), Canco Oil & Gas Ltd. v Saskatchewan, [1991] 4 WWR 316, 1991 CanLII 7788 (SK QB)Scurry-Rainbow Oil Ltd. v Galloway Estate, [1993] 4 WWR 454, 1993 CanLII 7025 (AB QB); aff’d 1994 ABCA 313 (CanLII), [1995] 1 WWR 316, and St. Andrew Goldfields Ltd. v Newmont Canada Ltd., [2009] OJ No 3266, 2009 CanLII 40549 (ON SC); aff’d 2011 ONCA 377, before concluding that the words used by the parties to this contract did not evidence an intention to create an interest in land but only a contractual interest. Important factors in her decision included the following (at para 67):

(a)  Walter Energy is specifically stated to have “acquired” the licenses and to be the beneficial owner of them free of any “claims of others” (Recital B and clause 3.1(c));

(b)  … Mr. James had no direct rights in respect of the coal licenses and he relinquished any further control in respect of them. Mr. James had no assurance that he would gain any consideration under the royalty if the Properties were never put into production;

c)  clause 2.1 does not include any formal conveyancing language to, for example, “grant, assign, transfer orconvey” any rights to Mr. James in relation to the coal licenses (contra CancoBlue Note and Scurry-Rainbow). No such words, or similar words, are used; rather, it is simply an obligation to pay the royalty;

d)  with Mr. James having some control over WCC at the time, it would have been a simple matter to have included clear language to the effect that Mr. James was to be granted a royalty that would “run with the land” (seeCanco). As in Vandergrift, at p. 27, the choice of language was within his control but no such clear language was used;

e)  the reference to the payment of the royalty being based on what is “produced” from the coal properties is simply the means by which the parties agreed to calculate the amount of the royalty. It is not a reference to a royaltyin the “Properties” or coal licenses: see  LawrenceSaskatchewan MineralsVanguardVandergrift and St. Andrew Goldfields. I note that the parties disagree as to whether the royalty is due upon production (i.e. once removed from the land), or upon the coal being shipped to port and priced at that time for the purposes of calculating the 1% royalty. In my view, this is not a relevant distinction as, in any event, the coal would have been severed from the lands by that time;

f)    clause 4.3 of the RSA indicates that the parties did consider what rights the Investors would have in relation to the coal licenses in the future. Those rights were specifically addressed in the context of a forfeiture of the Properties … a circumstance which is not relevant here. Further, the RSA does anticipate that any assignment of the RSA by WCC would require the consent of Mr. James (clauses 8.1/9.1). However, that circumstance is not what is happening here, since no one has sought to assign the RSA, let alone without Mr. James’ consent; and

g)  importantly, the RSA does not restrict the ability of Walter Energy to sell the Properties, and it also contains no obligation on the part of Walter Energy to require any purchaser of the Properties to assume its obligations under the RSA.

While this reasoning trades on all of the artificial and sometimes spurious distinctions which characterized the pre-Dynex jurisprudence, and while it is hard to believe why anybody would create a GORR that was not intended to be an interest in land, it is difficult to fault Justice Fitzpatrick’s conclusion. This is because Dynex still requires assessment of the intentions of the parties as revealed in the language used in the document and any relevant surrounding commercial circumstances, and as such this line jurisprudence, muddled and unsatisfactory as it is, continues to be relevant at this stage of the analysis.

This post may be cited as: Nigel Bankes, “Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation” (October 13, 2016), on-line: ABlawg,

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The Effect of a ‘Whole Agreement Clause’ on Pre-Contractual Misrepresentations

Wed, 10/12/2016 - 10:00am

By: Evaristus Oshionebo

PDF Version: The Effect of a ‘Whole Agreement Clause’ on Pre-Contractual Misrepresentations

Case Commented On: Houle v Knelsen Sand and Gravel Ltd., 2016 ABCA 247 (CanLII)

This case raises a significant legal question regarding the effect of a ‘whole agreement clause’ (also referred to as ‘entire agreement clause’) on pre-contractual misrepresentations. Put differently, does a whole agreement clause in a written contract preclude liability for misrepresentations occurring in the course of negotiating the contract?


The facts of this case are that Wapiti Gravel Supplies (Wapiti) obtained an exploration permit and a surface lease to exploit gravel on a parcel of land. Wapiti engaged Silvatech Resource Solutions (Silvatech) to assess potential gravel deposit in the land. Silvatech reported that there might be an estimated 444,850 tonnes of gravel in the land. Subsequently, Wapiti transferred its lease to the Appellants. Having obtained the lease from Wapiti the Appellants approached the Respondent regarding the gravel deposit. The Appellants furnished the Respondent with the Silvatech data. On the basis of the data the Respondent’s manager concluded that the land would yield 457,000 tonnes of gravel. The Respondent agreed to purchase the rights to the gravel deposit for the sum of $800,000 and the parties drew up and executed a formal contract. Under that contract, the purchase price of $800,000 was to be paid in installments such that the sum of $75,497.36 was payable as a deposit, followed by an initial payment of $324,502.64, and a final payment in one year of $400,000.

The contract contains a whole agreement clause which was inserted at the Appellants’ request. The clause provides as follows:

  1. The Purchaser acknowledges that he has inspected the property and that he is purchasing the property as is and that there is no representation, warranty, collateral agreement or condition affecting the property or this offer other than as expressed herein in writing.

Soon after the contract was executed it became evident that the land contained a far smaller quantity of gravel than the parties expected. In fact, the Respondent was only able to extract 74,000 tonnes of gravel from the land, although it was estimated that the land might contain another 25,000 to 30,000 tonnes of gravel. However, extraction of this estimated quantity of gravel would not be economical.

On this basis the Respondent refused to make the final payment of $400,000, prompting the Appellants to sue for breach of contract. The Respondent filed a counterclaim alleging, amongst other arguments, misrepresentation regarding the quantity of gravel in the land.

The trial judge dismissed the Appellants’ claim for the unpaid $400,000, but allowed the Respondent’s counterclaim on the basis of innocent misrepresentation. The trial judge held that the Silvatech report estimating the quantity of gravel in the land was not merely an opinion but a representation of fact. Thus, the Appellants made “a positive misrepresentation” to the Respondent regarding the volume of gravel in the land (at para 10) Furthermore, relying on Queen v Cognos Inc., [1993] 1 SCR 87, 1993 CanLII 146, the trial judge held that the whole agreement clause did not insulate the Appellants from liability for their pre-contractual misrepresentation because there was no contemporaneity between the clause and the misrepresentation. In the end, the trial judge rescinded the contract and ordered the Appellants to refund to the Respondent the amount paid for the estimated gravel, less the value of gravel actually extracted from the land by the Respondent (at para 10-11).

Decision of the Court of Appeal of Alberta

On appeal to the Court of Appeal of Alberta, the issue raised by the Appellants was whether the contract could be rescinded for innocent misrepresentation in view of the whole agreement clause. This issue raised a preliminary question as to whether the Silvatech report was a statement of fact or mere opinion.

On this preliminary question, the Court of Appeal held that the trial judge committed a palpable and overriding error by holding that the Silvatech report is a representation of “fact”. The Court of Appeal held further that:

As the trial reasons recognized, no one knew, or purported to know, how much gravel was actually in the land (see infra, para. 19). Neither the appellants, the respondent, Wapiti or Silvatech ever claimed or represented that there were in fact at least 500,000 tonnes of gravel, and it would have been reckless for any of them to do so. …. The Silvatech report can only reasonably be read as stating that, in the opinion of Silvatech and based on its professional analysis, it was more likely than not that there would be about 444,850 tons of gravel in the land. This was clearly an opinion, not a “fact”. Neither Silvatech (nor the appellants, vicariously) ever represented as a fact that there was any particular quantity of gravel present. (at para 17)

With regard to the effect of the whole agreement clause, the Court of Appeal distinguished Queen v. Cognos Inc. and held that “Cognos does not import a general requirement of temporal ‘contemporaneity’ into the interpretation of whole agreement clauses; there was no whole agreement clause in that case.” (at para 22). Furthermore, the Court of Appeal held that the whole agreement clause provided a complete defence to the Respondent’s counterclaim because it disclaimed any representation regarding the property (at para 20).

In the ensuing analysis I argue that the decision of the Court of Appeal is on firm ground in terms of its holding that the Silvatech report is a statement of opinion and its conclusion regarding the effect of the whole agreement clause.


In determining whether a statement amounts to a statement of fact, Canadian courts apply the objective standard by looking at the circumstances surrounding the making of the statement. In the instant case both parties realized at the time of negotiating the contract that the exact quantity of gravel was unknown and, in fact, the Respondent’s witnesses acknowledged at trial that some variability from the estimated quantity of gravel in the Silvatech report could be expected. Furthermore, at the time the Silvatech report was transmitted to the Respondent, both parties knew that the exact quantity of gravel in the land was a matter over which Silvatech had no control. This is a significant observation because, as John McCamus, The Law of Contracts, 2nd ed at page 338 points out, if a statement “concerns matters over which the representor obviously has no control, it is unlikely that the statement would be characterized as one of fact.” Thus, viewed objectively, the Silvatech report is not a statement of fact but a statement of opinion.

The trial judge may have relied on Silvatech’s expertise in remote sensing, digital mapping and exploration to conclude that the data estimating the gravel deposit is a statement of fact which induced the Respondent to execute the contract. To be sure, the expertise of the maker of a statement may give rise to an inference that the maker of the statement implicitly warranted that the statement is true. Thus, in Dick Bentley Productions v. Harold Smith Motors Ltd., [1965] 1 WLR 623, a sales person’s representation that a car had done 20,000 miles since it was fitted with a new engine when in fact the car had done about 100,000 miles was held to be an implicit contractual warranty because the representor had expertise relative to the car. Apparently, the Appellants in the instant case requested that the whole agreement clause be included in the contract in order to avoid any such inference.

More significantly, the trial judge appears to have misapprehended the Supreme Court of Canada’s decision in Cognos in at least two ways. First, the trial judge assumed that Cognos is indistinguishable from the present case. However, these two cases raise significantly different issues. In Cognos, the issue was whether a clause in an employment contract allowing the termination of employment without cause precluded an employee from recovering damages for negligent misrepresentation which occurred during hiring interview, whereas the present case raises the issue of the effect of a whole agreement clause on a misrepresentation arising in the course of negotiating a contract. Thus, whether or not a whole agreement clause precludes liability for pre-contractual misrepresentation was not an issue in Cognos.

Second, in Cognos the Supreme Court of Canada did not expressly stipulate that there must be contemporaneity between a whole agreement clause and a pre-contractual misrepresentation in order for the whole agreement clause to exclude liability for the misrepresentation. Rather, the “concurrency question” addressed in Cognos is “whether there is a specific contractual duty created by an express term of the contract which is co?extensive with the common law duty of care which the representee alleges the representor has breached” (page 113). The Supreme Court of Canada summarized the “concurrency question” in Cognos thus:

Put another way, did the pre?contractual representation relied on by the plaintiff become an express term of the subsequent contract?  If so, absent any overriding considerations arising from the context in which the transaction occurred, the plaintiff cannot bring a concurrent action in tort for negligent misrepresentation and is confined to whatever remedies are available under the law of contract. (page 113)

Referencing its earlier decision in BG Checo International Ltd. v British Columbia Hydro and Power Authority, [1993] 1 SCR 12, 1993 CanLII 145, the Supreme Court of Canada continued in Cognos as follows:

There lies, in my view, the fundamental difference between the present appeal and BG Checo, supra.  In the latter case, the alleged pre?contractual misrepresentation had been incorporated verbatim as an express term of the subsequent contract.  As such, the common law duty of care relied on by the plaintiff in its tort action was co?extensive with a duty imposed on the defendant in contract by an express term of their agreement.  Thus, it was my view that the plaintiff was barred from exercising a concurrent action in tort for the alleged breach of said duty, and this view was reinforced by the commercial context in which the transaction occurred. (pages 113-14)

The Supreme Court of Canada then answered the “concurrency question” in Cognos:

In the case at bar, however, there is no such concurrency.  The employment agreement signed by the appellant in March of 1983 does not contain any express contractual obligation co?extensive with the duty of care the respondent is alleged to have breached. The provisions most relevant to this appeal (clauses 13 and 14) contain contractual duties clearly different from, not co?extensive with, the common law duty invoked by the appellant in his tort action. (page 114)

The “concurrency question” in Cognos does not arise in the instant case; hence the principle in Cognos does not apply to the facts of this case.

In addition to misapprehending the decision in Cognos, the trial judge appears to have disregarded a cardinal rule of interpretation of contracts. A court must “search for an interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract” (Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 SCR 888, 1979 CanLII 10 at 901). The trial judge’s decision disregarded the express intention of the parties as encapsulated in the whole agreement clause. Through the whole agreement clause the parties expressly and intentionally allocated to the Respondent any risk regarding the quantity of gravel in the land. As observed by the Court of Appeal, “The respondent knew it was buying whatever gravel existed in a particular piece of land, and that is what it got.” (at para 22). The trial decision allowed the Respondent to circumvent or avoid the whole agreement clause and, in that sense, deprived “the parties of the certainty the whole agreement clause was intended to deliver.” (at para 20) As rightly noted by the Court of Appeal:

The point of the whole agreement clause is that the obligations of the parties will be determined in accordance with the written terms of the contract, not extraneous negotiations and discussions that have not been reduced to writing, and thus formally acknowledged by the contracting parties. (at para 23)

One further observation ought to be made. Although the whole agreement clause provides that “there is no representation, warranty, collateral agreement or condition affecting the property or this offer other than as expressed herein in writing” (at para 4), it does not refer expressly to pre-contractual representations or warranties. Hence the Respondent argued that the clause is not wide enough to cover a pre-contractual misrepresentation arising from Silvatech’s report. The Court of Appeal acknowledged the Respondent’s argument (at para 23), but the Court did not directly address the argument. Rather, it observed simply that a “whole agreement clause, like any other clause in the contract, must be interpreted in accordance with the intentions of the parties as reflected in the words used in their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract” (at para 23).

The failure of a whole agreement clause to refer expressly to pre-contractual representations does not preclude application of the clause to such representations. In Essa v Mediterranean Franchise Inc., 2016 ABQB 178 (CanLII), at para 174, for example, the Honourable Justice W.N. Renke held that the failure of a whole agreement clause “to refer expressly to negligent misrepresentations would not preclude its application to negligent misrepresentations”. Similarly, in Horizon Resource Management Ltd. v. Blaze Energy Ltd., 2013 ABCA 139 (CanLII) at para 47, the Court of Appeal of Alberta held:

The Master Well Service Contract contained an entire agreement clause. Clause 17.1 provided, “Each Service Agreement shall constitute the entire agreement between Operator and Contractor in connection with the subject matter thereof and shall supersede all prior agreements, arrangements, negotiations, representations or understandings by or between, whether written or otherwise.” Blaze submitted that the clause did not exclude liability for the tort of negligent misrepresentation, because it did not expressly address liability for tort. The trial judge concluded that entire agreement clauses need not expressly exclude liability in tort in order to exclude an action in negligence: see Carman Construction Ltd v. Canadian Pacific Railway, 1982 CanLII 52 (SCC), [1982] 1 SCR 958, 136 DLR (3d) 193 and Gainers Inc v. Pocklington Financial Corp, 2000 ABCA 151 at para 16, 255 AR 373. His conclusion was correct.

That being said, there are specific situations in which a whole agreement clause would not have the usual effect of precluding liability for pre-contractual misrepresentations. For example, a whole agreement clause does not preclude liability for intentional deceit or fraudulent misrepresentation. (See T.W.T. Enterprises Ltd. v Westgreen Developments (North) Ltd., [1991] 3 WLR 80, 1990 CanLII 5599 (ABQB) affirmed 1992 ABCA 211 (CanLII);1052276 Alberta Ltd. v Consultant Feeds Ltd., 2007 ABPC 269 (CanLII)). Also, a whole agreement clause is inapplicable where notice of the clause was not given to the representee at the time of the contract (McCamus, at 365-368). However, deceit and fraudulent misrepresentation do not arise in the instant case and, quite obviously, the Respondent was aware of the whole agreement clause at the time of execution of the contract.

This post may be cited as: Evaristus Oshionebo, “The Effect of a ‘Whole Agreement Clause’ on Pre-Contractual Misrepresentations” (October 12, 2016), on-line: ABlawg,

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The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments

Tue, 10/11/2016 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments

Case Commented On: Dove v Canada, 2016 FCA 231 (CanLII)

The Federal Court of Appeal decision in Dove v The Queen is an unusual decision dealing with Organized Pseudo-Legal Commercial Arguments (OPCA). It’s short, for one thing ? only six paragraphs in total compared to the 736 paragraph decision in Meads v Meads, 2012 ABQB 571 (CanLII), the judgment in which Associate Chief Justice John D. Rooke coined the OPCA label. He defined OPCA litigants as “persons [who] employ a collection of techniques and arguments promoted and sold by ‘gurus’ … to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.” (at para 1). Second, it uses Noam Chomsky’s most famous sentence to help explain what is wrong with the appellants’ claims, rather than the usual words of legal censure. And third, it asserts that OPCA litigation is not a problem for the Federal Court of Appeal, in contrast to the more common judicial hand-wringing.

Although the Federal Court of Appeal decision is a scant six paragraphs long, the lower court decisions of Prothonotary Kevin R. Aalto — Dove v Canada, [2015] FCJ No 1187, sub nom Bursey v Canada, 2015 FC 1126 (CanLII) — and Justice Douglas R. Campbell — Bursey v Canada, 2015 FC 1307 (CanLII), [2015] FCJ No 1445 — are both available to fill in some blanks. Why two different names for this case? The Prothonotary and Federal Court dealt with five different cases brought by four different people: Wally Dove, Jason Dove, Michael Bursey, and Glenn Bursey. The five claims were consolidated in the Federal Court, and the claim of Wally Dove ? the primary spokesman for all of the plaintiffs at all levels of court ? was made the lead file. The only appeal before the Federal Court of Appeal, however, was that of Wally Dove, although the fate of all five actions was the same. All were dismissed, without leave to amend, and with costs awarded to the Crown.

The plaintiffs agreed that all five claims were essentially the same. Even though Justice Campbell in the Federal Court reproduced Mr. Dove’s “Bill in Equity” (2015 FC 1307 at para 4) and 47 of the more than 100 paragraphs in the Statement of Claim (2015 FC 1307 Appendix), it is difficult to make out the essence of the plaintiffs’ claims. Justice Campbell summarized the claims as the “belief that, by birth in Canada, a person acquires a proprietary interest in the resources of the country, under the wrongful control of Her Majesty the Queen, that founds a monetary claim which is calculable based on that person’s date of birth” (2015 FC 1307 at para 8). This is essentially one of the “Tax-related Magic Hats” identified by Meads v Meads (at para 341) as the argument that “a person can pay for their income tax via a pro-rated share of government property.” What the court actions were really about, according to Prothonotary Aalto, was the plaintiffs’ dissatisfaction with paying income tax (2015 FC 1126 at para 8).

There were other commonalities with OPCA tactics and schemes described in Meads v Meads. For example, Prothonotary Aalto noted (2015 FC 1126 at para 6; see also paragraphs 57, 62, 65, 72, 73, and 98-102 in the Statement of Claim) that their claims that the document recording the registration of their birth was a security under the Bank Act that created multimillion dollar debts in their favour was one of the “Money for Nothing Schemes” described in Meads v Meads (at paras 529-550).

All of the claims were dismissed by the Prothonotary on the Crown’s application to strike on the basis that they disclosed no reasonable cause of action. Their dismissal was upheld by the Federal Court who heard the five appeals de novo. The Federal Court of Appeal upheld the dismissal of Wally Dove’s claim on appeal, simply stating that Justice Campbell made no mistake when he concluded that the Statements of Claim had “no reasonable prospect of success” and neither did Prothonotary Aalto when he concluded that “none of the Statements of Claim raise any cause of action and are bereft of any chance of success” (at para 2).

Having dismissed the appeal in only two paragraphs, it is the rest of what the Federal Court of Appeal had to say that is most interesting.

“Colourless green ideas sleep furiously” 

Prothonotary Aalto described the plaintiffs’ claims as attempts to build a cause of action “based on snippets and fragments” bound together “in pseudo-legal verbiage” (at para 2), and their “imaginary claims” as “pseudo-legal drivel” (at para 6). Justice Campbell in the Federal Court reproduced the plaintiffs’ claims and let them speak for themselves. As an example, consider paragraph 14 from Wally Dove’s claim, reproduced in the Appendix to Justice Campbell’s decision as follows:

  1. The applicant informed the Queen in council that he will only stand under recognition and designation as a Human Being. That the applicant has no obligation to seek to have a right conferred upon him by the defendant through a license or permit.…

The Federal Court of Appeal characterized the legal propositions that Wally Dove put forward as “incoherent and devoid of any legal meaning” (at para 3). Then, in a more imagination-seizing moment, the Court characterized those propositions as the legal equivalent of Noam Chomsky’s famous sentence: “Colourless green ideas sleep furiously.”

In Syntactic Structures (The Hague/Paris: Mouton, 1957) at 15, Noam Chomsky lists six sentences, of which the first two are:

(1) Colourless green ideas sleep furiously.

(2) Furiously sleep ideas green colourless.

The linguist followed this list with the point that “Sentences (1) and (2) are equally nonsensical, but any speaker of English will recognize that only the former is grammatical.” His purpose was to demonstrate the distinction between syntax and semantics.

The Federal Court of Appeal has joined what has been referred to as “a small industry” spawned by that one grammatical but nonsensical sentence, “colourless green ideas sleep furiously.” The sentence has been the source of poems and jazz song titles, and has even made it into Bartlett’s Familiar Quotations. Because tolerance for this sort of thing is high in poetry, the sentence can appear meaningful. Take for example, John Hollander’s poem, “Coiled Alizarine”, dedicated “for Noam Chomsky”, originally published in The Night Mirror (New York: Atheneum, 1971):

Curiously deep, the slumber of crimson thoughts:

While breathless, in stodgy viridian,

Colourless green ideas sleep furiously.

But I digress. The Federal Court of Appeal’s point was that Wally Dove had assembled words, phrases, and concepts which had some meaning in their original context but none whatsoever in his use of them, just as each word in Noam Chomsky’s famous sentence can be given a discrete meaning, but the sentence formed by those words is “devoid of intelligible content” (at para 3). Perhaps their analogy will make their point with the plaintiffs better than the usual words of legal censure.

“[T]he OPCA phenomenon is not a threat to the orderly administration of justice in this Court”

After all of the many claims by many courts from all provinces and levels that OPCA litigants are a major problem for the administration of justice, it is highly unusual for a court to say, as the Federal Court of Appeal does in this case, that “the OPCA phenomenon is not a threat to the orderly administration of justice in this Court at this time” (para 4). It is more usual for a court to talk about such claims “improperly clogging up the legal system to the cost and prejudice of those who would otherwise have to face and deal with them” (Fiander v Mills, 2015 NLCA 31 (CanLII) at para 40).

One might expect to see significant numbers of OPCA litigants in the Federal Court of Appeal if only because appeals from the Tax Court of Canada go directly to the Federal Court of Appeal. Justice Rooke had noted in Meads v Meads (at paras 169-170) that the first OPCA movement to appear in Canada were the “Detaxers”, litigants focused almost entirely on avoiding income tax obligations. However, Justice Rooke also noted in his 2012 decision that fewer Detaxer claims were still being made due to the failure of all such claims, no matter their form, and the prosecution of some litigants for tax evasion.

Searches for “Organized Pseudo-Legal Commercial Argument”, “OPCA”, and “Meads v Meads” in the federal courts databases in CanLII, LexisNexis Quicklaw, and WestlawNext Canada turned up only 12 decisions since 2012. Seven of those were in the Tax Court of Canada, four were in the Federal Court, and only one — this case, Dove v Canada — was in the Federal Court of Appeal. Five were decided in 2013, two in 2014, one on 2015 and four (so far) in 2016. Although written decisions found in these databases may not tell the whole story, and number of cases is a rough proxy, these numbers suggest that OPCA litigants are rare not only in the Federal Court of Appeal, but in the federal court system as a whole.

Part of the reason that OPCA litigation is not seen as a problem in the Federal Court of Appeal may be that the federal courts seem to be slow to use the OPCA label. In Dove v Canada, Pronthonotary Aalto called the plaintiffs “quintessential OPCA litigants” (2015 FC 1126 at para 1) and their causes of action “of the cloth of standard OPCA litigant claims” (at para 5). Nonetheless, he did acknowledge “Dove’s earnest belief that [those claims] amount to causes of action.” (at para 5) He awarded costs against the plaintiffs of $500 per action, a total of $2,500.

In contrast, in the Federal Court, Justice Campbell did not mention Meads v Meads or the OPCA concept. Justice Campbell did state that “Mr. Dove presented an honest commitment to, and belief in” the claims he made (2015 FC 1307 at para 4), as had the Prothonotary (2015 FC 1126 at para 5). In response to the Crown’s argument for an elevated costs award to discourage “this type of abusive litigation,” Justice Campbell stated he had “no reason to conclude that the present litigation is an abuse of process” because the plaintiffs brought their actions “on the basis of an honest belief and similar claims have not been determined by this Court” (2015 FC 1307 at para 11). The rarity of such claims in the specific court — as opposed to in prosecutions for income tax evasion in provincial courts — was therefore a factor.

And in the Federal Court of Appeal, where the Crown asked that the plaintiffs be declared to be OPCA litigants as that term is defined and used in Meads v Meads, the Court refused, saying (at para 4):

It is true that Mr. Dove’s claim shares some of the characteristics attributed to OPCA litigants, but the OPCA phenomenon is not a threat to the orderly administration of justice in the Court at this time.

According to Meads v Meads, an OPCA litigant is one who expresses “a general rejection of court and state authority…” (at para 4). Justice Rooke went on to state that OPCA litigants are unified by:

  1. a characteristic set of strategies (somewhat different by group) that they employ,
  2. specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and
  3. the commercial sources from which their ideas and materials originate.

This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary, equitable, and criminal obligations if they feel like it. And typically, they don’t. (at para 4)

It would seem that what is missing from Dove v Canada is the “general rejection of court and state authority”, although there is no indication, for example, of whether the costs awards in the lower courts were paid by the plaintiffs. However, it may be difficult to conclude that anything is missing in this case from the definition of OPCA litigants in Meads v Meads because the Federal Court of Appeal ends its judgment with a warning to Wally Dove and his fellow plaintiffs. They are warned not to blame their lack of success in the federal courts “on the bad faith and corruption of the judges who hear and decide their cases and on the collusion of the lawyers who represent the Crown and the judges and prothonotaries who have heard their cases” (at para 5).

The Federal Court of Appeal went on to say that “[s]uch allegations have consequences and if Mr. Dove continues in his present vein, he will have to deal with those consequences” (at para 5). The Court specially cites Abi-Mansour v Canada (Aboriginal Affairs), 2014 FCA 272 (CanLII) at paras 9-15 for the consequences of repeated unsupported allegations of bias, characterized in that case as attacks on “one of the pillars of the judicial system” (at para 12) and as “an abuse of process” (at para 14). In addition, in Meads v Meads, Justice Rooke specifically noted that some OPCA litigants “claim judicial bias, influence, or conspiracy” (at para 292).

The only reason stated by the Federal Court of Appeal for why this litigation was not OPCA litigation was that “the OPCA phenomenon is not a threat to the orderly administration of justice in this Court” (at para 4). That reason seems to go more to quantities within one particular court, rather than to qualities, impact on parties on the other side, or prevalence in courts across Canada.

This post may be cited as: Jonnette Watson Hamilton, “The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments” (October 11, 2016), on-line: ABlawg,

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Extending Limitation Periods for Environmental Actions

Thu, 10/06/2016 - 10:00am

By: Nickie Nikolaou

PDF Version: Extending Limitation Periods for Environmental Actions

Case Commented On: Lakeview Village Professional Centre Corporation v Suncor Energy Inc, 2016 ABQB 288 (CanLII)

The nature of environmental contamination often requires the bending of usual legal rules. Because contamination can take years to develop or be discovered, the application of traditional limitation periods to actions for the recovery of damages from environmental contamination could result in unfairness. It could also mean the ultimate costs of clean-up would fall to the public purse if no financially viable party is liable for the clean-up. Alberta has modified its statutory limitation periods to address this problem. Section 218 of the Environmental Protection and Enhancement Act, RSA 2000, c. E-12 (EPEA) allows a court to extend a limitation period “where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.” After years on the books, this is the first case to clarify the procedure courts should follow under section 218 of the EPEA.


The plaintiff, Lakeview Village Professional Centre Corporation (Lakeview), purchased land in the Lakeview subdivision of Calgary in 1998. The land consisted of a commercial building, two parking lots and a surrounding landscaped area. At the time of purchase, Lakeview was aware that there had been a former gas station on the site. (at para 1) Gulf Oil (now Suncor Energy Inc.) had owned the lands and operated the gas station from 1969 to the mid-1980s. In May 1988, Commonwealth Business Management Ltd. (Commonwealth) had purchased the lands from Suncor.

As a condition of its offer, Lakeview had asked Commonwealth to provide information about the environmental state of the lands. By this time, the gas station was gone and the underground storage tanks had been removed. Commonwealth commissioned a Phase II Environmental Assessment Report from a professional environmental consultant who concluded that there was “no evidence of significant contamination on the subject property and no further investigation is warranted at this time.” (at para 27)

Several years later in 2013, Lakeview received an offer to purchase the lands, prompting another environmental assessment. This time, a Phase I and Phase II Environmental Assessment found hydrocarbon contamination at a level requiring remediation. Lakeview commissioned a Phase III Environmental Assessment and began remediation of the lands. This included the removal of contaminated soil and buried concrete and metal piping, and backfilling the site with clean soil. To date, Lakeview had spent over $400,000 for the remediation and further costs were likely (at para 29).

To recoup some or all of these costs, Lakeview commenced an action against former owners of the lands, including Suncor and Commonwealth. As noted by Justice Sheilah Martin, “[n]ormally, the Plaintiff’s action would be out of time under the Limitations Act, as these events occurred well past the 10-year ultimate limitation period.” (at para 3). Relying on section 218 of the EPEA, Lakeview applied for an extension.

Section 218 reads as follows:

218(1) A judge of the Court of Queen’s Bench may, on application, extend a limitation period provided by a law in force in Alberta for the commencement of a civil proceeding where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.

(2) An application under subsection (1) may be made before or after the expiry of the limitation period.

(3) In considering an application under subsection (1), the judge shall consider the following factors, where information is available:

(a) when the alleged adverse effect occurred;

(b) whether the alleged adverse effect ought to have been discovered by the claimant had the claimant exercised due diligence in ascertaining the presence of the alleged adverse effect, and whether the claimant exercised such due diligence;

(c) whether extending the limitation period would prejudice the proposed defendant’s ability to maintain a defence to the claim on the merits;

(d) any other criteria the court considers to be relevant.

In reviewing Hansard evidence, Justice Martin concluded that the purpose of section 218 is to extend the period in which civil proceedings can be initiated for damages to the environment, “recognizing that harmful effects of contamination may not be evident for several years” (at para 7). The factors set out in subsection 218(3), which a judge must consider when deciding whether to extend the limitation period, were adopted so as to ensure that the system for extending limitation periods is not “open to abuse” (at para 7).

What is the Procedure for Applications under Section 218 of the EPEA?

Justice Martin began her analysis by noting that applications under section 218 of the EPEA are fairly novel. Two cases where section 218 was previously considered did not set forth details about the proper approach. In particular, she queried whether the proper procedure required the court to decide conclusively that the limitation period is or is not extended, or whether the court is to make a preliminary determination only, allowing the plaintiff to go to trial where the limitation argument might be raised again. She noted that in some cases, the plaintiff might present sufficient evidence to satisfy a court to extend the limitation period at a preliminary stage on a balance of probabilities. But in other cases, at this preliminary stage, the evidence may be underdeveloped. There may not be, for example, sufficient evidence that an adverse effect occurred, or when it occurred (at paras 13-14). Such evidence would require expert evidence which may not yet be available.

Moreover, in her view, a conclusive section 218 finding might prematurely determine an issue that is best left for trial. A finding in regard to the subsection 218(3) factors may be inevitably “intertwined with merit-based considerations” (at para 15). For example, Justice Martin noted that a court concluding that a party exercised due diligence in ascertaining an adverse effect may influence findings on the degree of liability for contamination (at para 15).

This prematurity concern, to her mind, requires a court to not necessarily conclusively decide the merits of the limitation issue in an application under section 218. At the same time, however, a plaintiff has a “legitimate interest” (at para 20) in knowing whether to spend further resources on its claim. As a compromise position, Justice Martin concluded that a plaintiff under section 218 must show “a good arguable case” (at para 18) that is grounded in some evidence for an extension of the limitation period.

Justice Martin set forth the following two-step approach for judges to use in section 218 applications:

(1) Is there sufficient evidence on the s 218 factors to grant an extension of the limitation period?

(2) If there is not enough evidence to make that determination, or if there is sufficient evidence but an issue for trial could be determined prematurely, has the claimant shown a good arguable case for an extension? If so, the claimant is entitled to an extension of the limitation period subject to a final determination of the issue at trial. (at para 19)

Should the Limitation Period Be Extended in This Case?

Applying this approach to the facts in this case, Justice Martin analyzed the factors set out in subsection 218(3) based on the information available to her. There was some information about when the alleged adverse effect had occurred, placing the contamination on a time frame from 1969 to the mid-1980s at least, and potentially as late as 2013. Justice Martin concluded that this time frame was not “so long ago that it would be unfair to allow the action to proceed against either party” (at para 40).

With respect to the factor of whether the claimant had exercised due diligence in ascertaining the presence of the alleged adverse effect, Justice Martin concluded, on a preliminary basis only, that there was enough evidence before her to conclude that Lakeview had done so. Prior to purchasing the lands, Lakeview was concerned about potential contamination from the gas station, had required Commonwealth to provide information on the environmental status of the property as a condition of the purchase, and had justifiably relied on the Phase II Report prepared by professional environmental consultants. But Justice Martin emphasized that her due diligence findings were preliminary only, and that further evidence could be adduced at trial that could change this analysis. Moreover, as she stated, the “findings on due diligence may affect the liability analysis that will eventually unfold on the merits” (at para 51).

With respect to prejudice, neither Suncor nor Commonwealth presented any evidence that an extension to the limitation period would prejudice their ability to maintain a defence on the merits (at para 52). It seems there were no other relevant criteria that Justice Martin had to take into account. She rejected an argument by Commonwealth that the scope of section 218 should be limited to parties who have caused or contributed to the contamination of the lands (at para 53). The opening words of section 218 do not support such a restrictive interpretation given that they refer to civil proceedings “where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment” Depending on the cause of action, this may or may not impose liability only on those who caused or contributed to the adverse effect.

Thus, based on the evidence before her, Justice Martin concluded that this was the type of case contemplated by section 218. The harmful effects of contamination were not evident for several years, due diligence was shown, and there was no prejudice to the defendants. Nonetheless, she concluded that because there were some merit-based implications on due diligence in particular, an outright extension in this case would not be appropriate. She granted Lakeview an extension of the limitation period subject to a final determination of the issue at trial (at para 56).


At first blush, Justice Martin’s conclusion that a ruling under section 218 should only be made on a preliminary basis where an issue for trial might be predetermined seems odd given the language of section 218. Section 218 certainly suggests that a judge can and perhaps should make a final determination on the limitation issue on the application.

Moreover, the single rationale she gives for her conclusion that only a preliminary ruling on Lakeview’s due diligence for the purposes of section 218 should be made is questionable. On at least two occasions, Justice Martin states that a final determination on this issue would not be appropriate “because due diligence is a consideration when determining liability under s 129 of the Act” (at para 15) and “[d]etermining the issue could be problematic if new facts emerge at trial that affect the due diligence analysis.” (at para 15) With respect, section 129 of the EPEA authorizes the director (of Alberta Environment and Parks) to issue an environmental protection order against a person who is responsible for a contaminated site (as defined in the EPEA). It does not necessarily set out the considerations that would be considered in a law suit by Lakeview in, for example, tort or contract law against the former owners of the site. Section 129 has been specifically designed to cast a broader net of potentially liable persons for purposes of government-issued environmental protection orders than might be available under a civil suit based on common law causes of action.

Still, Justice Martin’s point that a final determination on some of the factors under subsection 218(3) might predetermine aspects of the civil claim is well-founded. A more complete evidentiary picture might emerge at trial that might influence the factors listed in that subsection. Thus, her approach strikes an appropriate balance between not deciding anything and deciding too much at this stage in the proceedings. A ruling on whether the plaintiff has established a “good and arguable” case for a limitation extension gives the plaintiff the ability to proceed with the action, while at the same time recognizing that the ruling has been made without a full trial of the action.

This post may be cited as: Nickie Nikolaou, “Extending Limitation Periods for Environmental Actions” (October 6, 2016), on-line: ABlawg,

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Human Rights, the Charter, and Access to Justice

Fri, 09/30/2016 - 10:00am

By: Jennifer Koshan

PDF Version: Human Rights, the Charter, and Access to Justice

Case Commented On: Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII)

This summer, the Federal Court of Appeal upheld the ruling of the Canadian Human Rights Tribunal (CHRT) that if a claimant wishes to challenge discriminatory federal legislation, they must do so via a Charter claim rather than a human rights complaint. This post will analyze the Court’s decision, compare it to the approach taken in Alberta in cases such as Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII); aff’d 2004 ABCA 210 (CanLII), and raise some concerns about the implications of the federal approach for access to justice. I will not analyze the Court’s reasons on standard of review, but it is interesting to note that following a survey of Canadian courts of appeal, the Federal Court of Appeal refers to the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78). The Supreme Court has an opportunity to clarify the standard of review issue in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, leave granted 2016 CanLII 13730 (SCC), which we have blogged on here and here and which will be heard by the Court in December. In addition, this month the Canadian Human Rights Commission filed an application for leave to appeal the Federal Court of Canada decision that is the subject of this post.


The CHRT’s ruling was made in two cases that are summarized at paragraph 4 of the Federal Court of Appeal decision:

In two very thoughtful and thorough decisions, reported as 2013 CHRT 13 (CanLII) [Matson] and 2013 CHRT 21 (CanLII) [Andrews], the Tribunal determined that the complaints in the present case were direct challenges to provisions in the Indian Act and that, as such, did not allege a discriminatory practice under section 5 of the CHRA because the adoption of legislation is not a service “customarily available to the general public” within the meaning of section 5 of the CHRA. While sensitive to the merits of the complainants’ claims, the Tribunal ruled that the challenge to the impugned provisions in the Indian Act may only be brought under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 … and therefore needs to be made to a court of law. In so deciding, the Tribunal relied on the decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7 (CanLII), 428 N.R. 240 [Murphy], where this Court held that the adoption of legislation is not a service customarily available to the general public within the meaning of section 5 of the CHRA. In result, the Tribunal dismissed the complaints.

The Canadian Human Rights Commission sought judicial review of these decisions at the Federal Court, supporting the Matson and Andrews complainants’ position that the CHRT did have jurisdiction to hear their challenges to the registration provisions of the Indian Act, RSC 1985, c I-5 under the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA). The Federal Court dismissed the Commission’s applications in Canada (Human Rights Commission) v. Canada (Attorney General), 2015 FC 398 (CanLII), holding that the CHRT’s decisions should be reviewed on the standard of reasonableness and that its decisions were reasonable.

The underlying issue in both the Matson and Andrews complaints involved an allegation of ongoing discrimination in the Indian Act concerning entitlement to registration or “Indian status” (the Federal Court of Appeal notes (at para 9) that “many indigenous people find this terminology offensive”, but uses it because of the language of the legislation, as will I).

Prior to 1985, the Indian Act determined status on a patrilineal basis, such that Indian men who married non-Indian women were able to pass their status on to their wives and children, whereas Indian women who married non-Indian men lost their status, as did their children. These provisions were unsuccessfully challenged under the Canadian Bill of Rights in Attorney General of Canada v. Lavell, [1974] SCR 1349, 1973 CanLII 175, but were revised in 1985 via Bill C-31 once the equality provisions in the Charter came into effect (see also Lovelace v Canada, Communication No R.6/24, UN Doc Supp No 40 (A/36/40) at 166 (1981), a decision of the UN Human Rights Committee finding that the provisions violated  article 27 of the International Covenant on Civil and Political Rights, the right of ethnic minorities to enjoy their own culture in community with other members of their group).

Bill C-31 made some attempt at removing the overt discrimination in the status provisions of the Indian Act, but maintained a “second generation cut-off rule” in section 6 of the Indian Act, described as follows by the Federal Court of Appeal (at para 15):

[T]hese provisions contemplate that individuals born of only one parent with Indian status are considered to be second generation and are granted status under subsection 6(2). If they have children with a person without status, they cannot transmit Indian status to their children. Conversely, people born of two parents with Indian status are generally speaking considered to be first generation and are granted status under subsection 6(1) of the Indian Act. They can transmit Indian status to their children, irrespective of whether the other parent possesses Indian status.

The second generation cut-off rule was found to violate section 15 of the Charter in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (CanLII). The federal government responded with the Gender Equity in Indian Registration Act, SC 2010, c 18 [the GEIRA], which adds section 6(1)(c.1) to the Indian Act, providing an entitlement to registration under section 6(2) for those individuals whose grandmothers lost status by marrying non-Indians before April 17, 1985. However, the McIvor decision and the GEIRA that followed it did not completely eliminate the problem of differential entitlement to status under the Indian Act. Sharon McIvor unsuccessfully sought leave to appeal the BC Court of Appeal decision to the Supreme Court (see 2009 CanLII 61383 (SCC)), and she currently has a communication (complaint) pending with the UN Human Rights Committee (see here). In May 2016, Canada asked the UNHRC to suspend consideration of McIvor’s communication to allow the government to implement a response to another constitutional challenge to the status provisions of the Indian Act in Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII). The government’s request – which does not yet appear to have been ruled on by the UNHRC, but to which McIvor objects – states that “Canada is now exploring various opportunities and approaches for engagement with First Nations and other Indigenous groups on necessary legislative changes in response to the Descheneaux decision.”

Another case currently before the courts that challenges the Indian Act’s status policy is Gehl v Attorney-General of Canada, 2015 ONSC 3481 (CanLII). The Ontario Court of Appeal has granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) to argue that the Proof of Paternity Policy – which assumes that if a father is not listed on a birth certificate, he is non-Indian – is discriminatory. LEAF argues that “there are many reasons why an Indigenous woman would not register her child’s biological father”, including lack of funds, denial of paternity by the father, or sexual violence such as incest and rape.

It is in this complicated context that the Matson and Andrews complaints were made under the CHRA. The Matson complaint concerns three siblings who became eligible for status under section 6(2) of the Indian Act following McIvor and the enactment of the GEIRA, but whose children are ineligible because the complainants married individuals who are not eligible for Indian status. The Andrews complaint involves a man entitled to status under section 6(2) who cannot pass status on to his children; he was born after his father was “enfranchised” (i.e. lost status under the Indian Act), whereas his sister, who was born before their father was enfranchised, is eligible for registration under section 6(1)(d) of the Indian Act and can pass status on to her children.

The issue for the Federal Court of Appeal was whether these complaints fell within the scope of section 5 of the CHRA, which provides that:

5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

(b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination.

The Federal Court of Appeal Decision

After lengthy consideration, the Court of Appeal determined that the appropriate standard of review was reasonableness. That is, were the CHRT’s decisions reasonable in finding that the Matson and Andrews complaints involved direct challenges to the Indian Act, and that the adoption of legislation is not a “service customarily available to the public”?

On the first issue, the Court held that the CHRT reasonably characterized the Matson and Andrews complaints as involving direct challenges to the Indian Act. According to the Court, “The complaints seek to expand the statutory grounds for the grant of Indian status by arguing that the legislation is impermissibly under-inclusive because it makes discriminatory distinctions based on the prohibited grounds of race, national or ethnic origin, sex or family status.” (at para 93). I do not take issue with this aspect of the Court’s decision.

On the second ground, the Court held the CHRT’s decision that the adoption of legislation was not a “service customarily available to the general public” under section 5 of the CHRA was also reasonable. The Court noted that previous case law on the scope of the “services” section required proof of two elements: “first, something of benefit must be available and, second, the benefit must be held out or offered to the public or a segment of the public” (at para 95, citing Gould v. Yukon Order of Pioneers, [1996] 1 SCR 571, 1996 CanLII 231 (SCC) and Watkin v. Canada (Attorney General), 2008 FCA 170 (CanLII); see also University of British Columbia v. Berg, [1993] 2 SCR 353, 1993 CanLII 89 (SCC)). The CHRT recognized that the Indian Act could be seen to confer benefits on those who have status, including benefits related to health and education, tax exemptions, and more “intangible benefits” related to acceptance by one’s indigenous community (at paras 10, 54). LEAF points out in its factum in Gehl that the Indian Act also confers benefits related to band membership, including the ability to vote and run in band elections, and that “the ability to pass on Indian status to one’s child is a significant benefit” (at paras 4-5). The first requirement of section 5 of the CHRA was therefore met.

However, the CHRT concluded that the second element –the benefit must be held out or offered to the public (or a segment thereof) – was not met, and the Court of Appeal found that there was a reasonable basis for this conclusion. It pointed to the unique and fundamental law-making function of Parliament, and asserted that “One simply cannot equate the act of legislating with a service” such as processing a citizenship application (at para 96, citing the CHRT decision in Andrews at para 57). The CHRT had followed the 2012 decision of the Federal Court of Appeal in Murphy that the adoption of legislation is not a service customarily available to the public, and while there is federal case law to the contrary, the CHRT properly found this case law less persuasive (at paras 36 and 97, referencing Canada (Attorney General) v. Druken, [1989] 2 FCR 24, 1988 CanLII 5712 (FCA), where the respondent had admitted that the adoption of the impugned legislation was a service customarily available to the public).

The Court of Appeal also found that the CHRT’s decisions were “not at odds with the case law from the Supreme Court of Canada or other jurisdictions that recognizes that, in appropriate cases, a human rights tribunal may declare inoperative a piece of legislation that conflicts with the human rights legislation due to the primacy of the latter” (at para 98). It is here that I take issue with the Court’s decision.

In Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII), Justice Sheila Greckol – who came to the bench with recognized expertise in human rights law – held that Alberta legislation, the Widow’s Pension Act, SA 1983, c W-7.5, was subject to the “services customarily available to the public” clause in this province’s human rights legislation (then section 3 of the Human Rights, Citizenship and Multiculturalism Act, RSA 1980, c H-11.7 (HRCMA)). The Widow’s Pension Act conferred benefits on certain women but excluded others on the basis of their marital status. Justice Greckol focused on the quasi-constitutional nature of human rights legislation, and the “clear … expression of supremacy” in section 1(1) of the HRCMA, which provided that “Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act.” (at para 73; emphasis added). Her decision that the Widow’s Pension Act was inoperative to the extent it discriminated on the basis of marital status was upheld by the Alberta Court of Appeal and leave to appeal was denied by the Supreme Court of Canada (see 2004 ABCA 210 (CanLII); [2004] SCCA No 342).

Similarly, in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 SCR 513, a majority of the Supreme Court recognized the jurisdiction of tribunals other than human rights bodies to apply human rights legislation. Part of the rationale for this decision was the primacy of human rights legislation, codified in Ontario in section 47(2) of the Human Rights Code, RSO 1990, c H.19: “Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act” (emphasis added). In Tranchemontagne, the majority held that the Social Benefits Tribunal should not have declined to exercise its jurisdiction to apply the Human Rights Code to its own legislation, which excluded persons with addiction-related disabilities from receiving benefits.

In the Matson and Andrews cases, the CHRT found that “in those cases where legislation had been declared inoperative by reason of a conflict with human rights legislation, the Tribunal possessed jurisdiction on an alternate basis, often because the complaint stemmed from an employment relationship where the employer applied an impugned legislative provision” (at para 34; see also paras 98-99). The Federal Court of Appeal found that this was a reasonable basis for distinguishing cases such as Tranchemontagne. However, the sole basis of the complaints in Gwinner and Tranchemontagne was the legislation itself, so this basis for dismissing case law other than Murphy is not persuasive.

On the primacy argument more generally, the Federal Court of Appeal found that “there is no reason to read [section 5 of the CHRA] as providing jurisdiction to hear legislative challenges merely because in cases where the Tribunal otherwise possesses jurisdiction it may declare conflictual legislation inoperative” (at para 99). With respect, this guts the primacy of human rights legislation – tribunals should not be restricted to hearing challenges to legislation in the limited circumstances where they otherwise possesses jurisdiction.

More specific to the Indian Act context of the Matson and Andrews complaints, until 2008, section 67 of the CHRA provided that nothing in the Act “affects any provision of the Indian Act or any provision made under or pursuant to that Act”. This section was repealed in An Act to amend the Canadian Human Rights Act, SC 2008, c 30, s 1, an amendment which had been long in the making. In the Matson and Andrews cases, the Canadian Human Rights Commission argued that an interpretation of section 5 of the CHRA that did not include review of discriminatory legislation “would render … former section 67 of the CHRA virtually meaningless” (at para 43). The Tribunal rejected this argument, in part because section 67 covered collateral challenges to the Indian Act, such that its repeal was not conclusive about the CHRT’s jurisdiction to consider direct legislative challenges (at paras 43-44). The Federal Court of Appeal found this to be a reasonable conclusion.

Also relevant was the remedial jurisdiction of human rights tribunals. The Federal Court of Appeal noted that the Matson and Andrews complaints “did not merely seek to have provisions in the Indian Act declared inoperative. Rather, their complaints of under-inclusiveness are ultimately aimed at having the provisions in section 6 of the Indian Act broadened to include the complainants’ children and those who are similarly situated to them” (at para 101). The Court noted that the CHRT does not have remedial powers to declare legislation invalid or to read in excluded groups so as to cure underinclusive legislation; these are Charter remedies. In Gwinner, however, Justice Greckol also dealt with underinclusive legislation, and noted that a finding that the legislation was inoperative combined with an order to the respondent that it cease its discriminatory practices was within a tribunal’s remedial powers (Gwinner at para 77).

Lastly, the Federal Court of Appeal dealt with the Commission’s argument that allowing challenges to discriminatory legislation to proceed before human rights tribunals in appropriate cases would result in greater access to justice. It rejected this argument, noting “the lengthy delays that are all too often seen in human rights adjudications” (at para 103). While delays in the human rights system cannot be denied, there are other access to justice advantages that may apply in human rights challenges as compared to Charter challenges, including less stringent evidentiary rules and approaches to discrimination (although see here), the ability of agents to appear on behalf of claimants (see e.g. the work of Pro Bono Students Canada), and the supportive role of human rights commissions in tribunal hearings in many jurisdictions.

Although the context of the Matson and Andrews complaints are admittedly complex and arise in the midst of a number of Charter challenges to the same provisions, I believe a blanket rule that discriminatory legislation cannot be directly challenged in human rights proceedings is contrary to the wording of human rights legislation and previous case law, and has serious access to justice consequences for claimants. To close with the words of the Supreme Court in Tranchemontagne, human rights legislation “must be recognized as being the law of the people… Accordingly, it must not only be given expansive meaning, but also offered accessible application.” (at para 33). Hopefully the Supreme Court will grant leave to appeal in Canadian Human Rights Commission v. Canada (Attorney General) and affirm that principle by recognizing the jurisdiction of human rights tribunals to hear challenges to discriminatory legislation.

This post may be cited as: Jennifer Koshan, “Human Rights, the Charter, and Access to Justice ” (Sept 29, 2016), on-line: ABlawg,

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Fisheries Act Review Should Be Evidence-Based

Mon, 09/26/2016 - 10:00am

By: Martin Olszynski

PDF Version: Fisheries Act Review Should Be Evidence-Based

Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.

Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful.

Re: Fisheries Act Review – “Serious Harm to Fish” and Associated Provisions

I am writing you today with a view towards your review of the Fisheries Act and specifically the changes to section 35 (protection of fish and fish habitat) introduced in 2012. I write to urge you to request that Fisheries and Oceans Canada (DFO) gather the relevant data and information necessary to ensure that the Committee has the proper evidentiary foundation to conduct a meaningful review. More specifically, I am referring to data and information with respect to compliance with section 35 of the Fisheries Act, including compliance with section 35 authorizations, as well as information with respect to the overall status of fish habitat in Canada.

Such studies have previously been carried out by DFO employees in the past. Perhaps one of the best known is J. T. Quigley, D. J. Harper, “Effectiveness of Fish Habitat Compensation in Canada in Achieving No Net Loss” (2006) Environ. Manage. 37 at 351. In this paper, the authors assessed the effectiveness of habitat compensation requirements in section 35 authorizations for a number of projects in Western Canada. In the course of my research, I have also come across the following piece from Alberta assessing the effectiveness of trenchless watercourse crossings: Nugent, S. 2011. “A review of trenchless watercourse crossings in Alberta with respect to species at risk” Can. Manuscr. Rep. Fish. Aquat. Sci. 2947: vi + 69 p. These are but two examples of the kind of research I propose further below.

During the limited (by design) Parliamentary debates surrounding Bill C-38 and C-45, critics of the then-existing fish habitat protection provisions argued that such laws were too onerous and/or unnecessary. My own research shows that, by the time of the 2012 amendments, DFO had already gone to great lengths to reduce the regulatory burden on proponents. What is missing, however, is an objective and rigorous assessment of what this regulatory regime has – and has not – accomplished over the years (referring now to both the current and previous regime) in terms of the protection and management of fish habitat.

In my view, this requires an assessment of

(i) a random selection of individual projects that entered the authorization regime in the past decade or so (25 – 30 projects could suffice, drawn proportionally from DFO’s various regions);

(ii) a random assessment of the status of fish habitat in various watersheds or sub-watersheds across Canada. As part of this second assessment, DFO officials would no doubt come across various works in or near water that did not enter the section 35 authorization regime, or perhaps were subject to DFO’s “Operational Statements” or “Letters of Advice”. The state of these works and their impacts (or not) on fish habitat should also be assessed as a part of this exercise.

Here in Alberta there are several individuals and organizations that have conducted such assessments at the watershed and sub-watershed scale who I suspect would be inclined to share their expertise if requested to do so. The Committee may also be aware of the innovative watershed reports recently completed by WWF Canada. These reports rely on various databases to provide an assessment of the health of, and threats to, Canada’s watersheds. Although the authors admit to struggling with data gaps in some instances, their assessment suggests that effective fish habitat protection laws are in fact necessary to stem the tide of continued watershed degradation, especially in urban areas and areas of significant resource development (e.g. the Peace-Athabasca Region). Below is a screenshot to give you some sense of this potentially transformative tool:

Of course, none of this would predetermine the outcome of the Committee’s work. Nor would negative results (e.g. that fish habitat is in fact deteriorating in some regions) necessarily require reverting to the previous regime. There is a wealth of innovation in environmental regulatory theory that should be considered in crafting an effective and efficient regime suited for the challenges of the 21st century. But it seems clear to me that the Committee, and Canadians more generally, would benefit greatly from having some common understanding of the extent of the problem. I am confident that if you request such information and analysis now, it could be completed within 2 months – well within the time frame set out for the Committee to do its work.

Thank you for your time in considering this matter. I will conclude by urging you to request that DFO collaborate on this project with one or more outside institutions, e.g. an academic or research institution of some kind. There are many outstanding fisheries biologists in Canada whose involvement would bolster the credibility, objectivity, and transparency of the exercise, bearing in mind always that restoring trust in Canada’s regulatory processes is one of the primary motivators for this review.

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International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

Tue, 09/20/2016 - 10:00am

By: Rudiger Tscherning

PDF Version: International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

Case Commented On: Balev v Baggott, 2016 ONCA 680 (CanLII)


The issues arising from international family disputes involving the non-consensual relocation of children abroad is perhaps one of the more difficult areas of private international law, in that the mechanical aspects of the conflict of laws (as set out in the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501) interact with the more personal aspects of international family life.

This post will examine the issue of international child abduction under the Hague Convention regime from the perspective of ‘time-limited consent’, namely whether the ‘habitual residence’ of a child can unilaterally be changed during a time-limited consent period when one parent wrongfully removes or retains a child in another contracting state.


As the Ontario Court of Appeal in Balev v Bagott, 2016 ONCA 680 (CanLII) recalled, applications pursuant to the Hague Convention do not determine custody or decide on what would be in the best interest of the child. The Hague Convention mechanism solely involves an adjudication on whether a child has been ‘wrongfully removed or retained’ in a contracting state within the scope of Art. 3 and Art. 12 of the Convention. If the answer is yes, and no exception contemplated by the Convention is applicable, the child must be returned to the place of his or her habitual residence. The mechanism therefore hinges on a determination of the child’s habitual residence immediately before the removal or retention.

The important term of ‘habitual residence’ is not defined in the Hague Convention. In 2004, the Ontario Court of Appeal set out a four-pronged test in Korutowska-Wooff v Wooff,2004 CanLII 5548 (ON CA).. The question of habitual residence is a question of fact, decided on all the circumstances; habitual residence is the place where the person resides for an appreciable period of time with a ‘settled intention’ a settled intention or purpose is an intent to stay in a place whether temporarily or permanently for a particular purpose; and a child’s habitual residence is tied to that of the child’s custodian(s) (Korutowska-Wooff,at para 8).

The Convention establishes a presumption in favour of ordering the summary return of the child, designed to restore the status quo ante by way of a ‘prompt return’ of the child to the place of his or her habitual residence (see for example, VW v DS, [1996] 2 SCR 108 (CanLII), at para 36). The mechanism is subject to four discretionary exceptions: a time limitation; lack of custody rights or acquiescence in the removal or retention of a parent; grave risk of physical or psychological harm to the child; and the ‘voice, not a veto’ right of a child to express its objection to a return order. This strict presumption is first and foremost designed to act as a powerful deterrent to parents against future international child abductions.

Issues Before the Ontario Court of Appeal

The appellant Mr. Balev and the respondent Ms. Bagott are Canadian citizens and the parents of two children, who were born in Germany but who are both Canadian citizens only. With the exception of two periods of time in Canada (one undisclosed and the other from October 2010 to January 2011) the children resided in Germany until April 19, 2013 when they arrived in Ontario with their mother. The parents had separated in 2011 but subsequently co-habited in 2012. The father had been awarded interim custody of the children in Germany. In April 2013, the parties agreed to take the children to Canada so that they could attend school, with the father signing a “Consent Letter for Children Travelling Abroad” for a period between July 2013 and August 2014. This consent is referred to as a ‘time-limited consent’ in international family law practice.

On the mother’s insistence (so as to enroll the children in a Canadian school), the father also signed a letter transferring physical custody of the two children to the mother for the time-period in question. Upon expiration of the consent period, the mother continued to reside with the two children in Ontario.

The issue before the Ontario Court of Appeal was whether the habitual residence of the two children had changed from Germany to Ontario during the period of the father’s time-limited consent so that the children were habitually resident in Ontario on the date that the consent expired. If so, the mother would not have wrongfully retained them in Ontario within the Hague Convention mechanism.

Case History and Decision

By way of background, the application judge had concluded that after the father’s consent expired on August 15, 2014, the mother had wrongfully retained the children in Canada within the meaning of Art. 3 of the Hague Convention, after she had failed to return them to Germany. The application judge had found that the children remained habitually resident in Germany, based on factual findings that the parties’ settled intention was that the children would reside in Canada on a temporary basis only. There had been a breach of the father’s custody rights under Art. 3 and the children had not ‘settled in’ in Canada within the meaning of Art. 12 of the Hague Convention.

The Divisional Court judge disagreed with the initial findings and concluded that the habitual residence had changed from Germany to Ontario during the consensual, temporary travel period and that the Hague Convention did not apply (at para 22). It held that the change in habitual residence resulted from the joint decision of the parties to move the children to Ontario for an extended period of time. Since the children were residing in Ontario with their mother and with the consent of their father for an “appreciable period of time” (para. 24), their habitual residence had changed.

The Ontario Court of Appeal disagreed. In its view, the Divisional Court had erroneously concluded that the habitual residence of the children could unilaterally be changed by the mother. The determinative paragraph of the Ontario Court of Appeal, at para 42, quotes a long established line of Ontario decisions that confirm that “a parent’s consent to a time-limited stay does not shift the child’s habitual residence”. The time-limitation of a consent fails to establish an “implication of permanency” that is requisite in a change of habitual residence (at para 42). On the facts, the time-limited consent contemplated an extension of the stay, but even if an extension had been agreed to by the father, “the extension does not defeat the time-limited nature of the consent” (at para 48). Nevertheless, the Court left open the possibility that in a different factual scenario, a consensual time-limited stay may be “so long that it becomes time-limited in name only and the child’s habitual residence has changed” (at para 49).

The Ontario Court of Appeal concluded that the components of Art. 3 of the Hague Convention were satisfied. The children habitually resided in Germany prior to their wrongful retention on August 15, 2014. That retention breached the father’s custody rights which the father was exercising at the time of the wrongful retention. The mother therefore wrongfully retained the children in Canada after August 15, 2014 and none of the four discretionary exceptions to the Hague Convention mechanism applied. The children would have to be returned to their father in Germany.


A consistent defence in international child abduction disputes is that the children have ‘settled in’ in their new environment. The Ontario Court of Appeal criticized the Divisional Court for taking this into consideration. As previously confirmed by the Supreme Court of Canada in Thomson v Thomson, [1994] 3 SCR 551 (CanLII), evidence of ‘settling in’ is not relevant under Art. 12 of the Hague Convention where an application to return a child is brought within one year of the wrongful detention or removal, as was the case on the facts here. Even where proceedings for a return application are commenced after the one-year period, a child is to be returned under the Hague Convention mechanism, ‘unless’ it can be established that the child is now ‘settled in’ in his or her new environment.

At the time of the decision of the Ontario Court of Appeal, the children had been in Ontario for more than three years. Despite this, the Court rightly concluded that a strict application of the Hague Convention was necessary. Firstly, the mother should not be given undue benefit for her actions in a “direct violation of the father’s custodial rights” (at para 83). Secondly, the issues before the Ontario Court of Appeal “transcend” (at para 83) the direct interests of the children in the overall interest of “countless other children and their parents” (at para 83). Here, the Ontario Court of Appeal reiterated the Supreme Court of Canada’s previous emphasis on deterring future international child abduction by favouring the restoration of the status quo as soon as possible (VW).

The objective and operation of the Hague Convention can only be achieved where there is a strict application of the Convention mechanism by all contracting states. Any decision to the contrary, as the mother in Balev had sought in her attempt to undermine the temporary aspect of a ‘time-limited consent’, would undermine the “purpose and efficacy of a carefully crafted scheme” (at para 84) as set out in the Hague Convention. Whilst the outcome for Ms. Bagott is clearly not satisfactory, the application judge’s order permits her to travel with the children to Germany and to reside there. The order also imposes a requirement that the paternal custodian is to provide ‘suitable housing’ for the mother and the children in Germany that is approximate to their living conditions enjoyed in Canada. As the facts in the case set out, the father is employed and continues to reside in the house in which the parents had resided with the children prior to their wrongful retention in Canada.

Although I do not wish to pass judgment on a family situation that is clearly difficult, one cannot but wonder if Ms. Bagott’s conclusion in the Canadian media that the Hague Convention has become a “means of legislative kidnapping” (“Court orders 2 Canadian children to move to Germany with father”, CBC News, September 13, 2016) is somewhat far-fetched. As the Supreme Court of Canada has previously held, the threshold of harm to a child (both physical or psychological) is a high one, requiring that the harm would amount to an intolerable situation (Thomson, at 596). Nor were there any issues raised that the return to the children’s custodian in Germany would invoke a Canadian public policy exemption as set out in Art. 20 of the Hague Convention on grounds of human rights and fundamental freedoms. The four discretionary exceptions to a ‘prompt return’ order were also not raised.

What is interesting from a conflict of laws perspective is that the Ontario Court of Appeal examined the father’s actions through the concepts of ‘parallel proceedings’ and ‘forum shopping’, which are typically raised in private international law disputes. Before his temporal consent was due to expire, the father filed a Hague Convention application for the return of the children at a court in Ontario. After a delay of 10 months in the Ontario proceedings, the father commenced a Hague Convention application in Germany. When the German courts “indicated” (at para 11) that the children were no longer habitually resident in Germany, the father withdrew his application and proceeded with the Ontario application, an action which the Ontario Court of Appeal considered to border on forum shopping (at para 62). On the facts, however, the German courts had not actually issued an order on the habitual residence of the children, that is, they had not made a final determination (at para 62). Indeed, Art. 8 of the Hague Convention provides that a parent can seek assistance for the return of a child either in the country of the child’s habitual residence or in another contracting state. The Ontario courts were correct to accept jurisdiction, with the Court of Appeal stressing that “the issue of habitual residence under the Hague Convention is one for the courts of the requested state” (at para 64). The jurisdiction of the Ontario courts to adjudicate the father’s application cannot, therefore, be criticized.

Final Observations

There are indications that Ms. Bagott is considering an appeal to the Supreme Court of Canada. Given that the Supreme Court has previously stressed a strict application of the Hague Convention principles and has emphasized the deterrent aspect extensively in VW, it would be surprising if leave were granted.

I began this blog by acknowledging that international child abductions raise sensitive and difficult issues. But in order to deter unilateral actions by parents to wrongfully remove or retain a child, the Ontario Court of Appeal was correct to follow the Supreme Court of Canada’s prior emphasis on deterrence, by applying the Hague Convention mechanism strictly.

On the subject of deterrence, between 2003 and 2008, the latest figures published by the Hague Conference on private international law (Nigel Lowe, A Statistical Analysis of Applications Made in 2008 under the Hague Convention – Part III National Reports, May 2011) show that Canada achieved a reduction of 13% in judicial return applications. Where there is arguable scope for improvement is the speed with which Hague Convention applications are determined. To this effect, courts in Canada, such as the Court of Queen’s Bench of Alberta, have reiterated the Convention’s emphasis on expediency for determining applications on wrongful removal or retention pursuant to the Hague Convention mechanism (see, for example, Court of Queen’s Bench of Alberta, Family Practice Note “6”, Art. 6, effective March 1, 2011).

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Does Judicial Review Apply to Decisions Made by Religious Groups?

Thu, 09/15/2016 - 10:00am

By: Shaun Fluker

PDF Version: Does Judicial Review Apply to Decisions Made by Religious Groups?

Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)

September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis, [1959] SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point.

RW was a member of the Jehovah’s Witnesses for 34 years and was expelled from the Highwood Congregation in March 2014 for engaging in drunkenness. The expulsion process consisted of a letter dated March 21, 2014 from the Judicial Committee of the Highwood Congregation directing RW to appear before it 3 days later to answer to the allegation. RW appeared before the Committee – which consisted of 3 elders of the Highwood Congregation – on March 24 and admitted to being intoxicated. The Committee gave its oral decision to expel RW the same day. RW appealed this decision to an Appeal Committee consisting of 3 elders from a neighbouring congregation. On April 5, 2014 the Appeal Committee met with the Judicial Committee and RW, and on the same day informed RW it was upholding the expulsion order. RW subsequently appealed to the Watch Tower and Bible Tract Society of Canada. The chair of the Judicial Committee informed RW that this appeal was also unsuccessful.

Because the Jehovah’s Witnesses shun expelled members, RW’s family and other members of the Jehovah’s Witnesses are compelled to shun RW. As a result, RW has suffered severe personal and economic losses. The devastation to his family needs no elaboration here. RW was also a realtor and, as a result of the shunning, he lost a significant portion of his clients.

RW applied to the Court of Queen’s Bench for judicial review of the Highwood Congregation’s decision to expel him, seeking an order of certiorari to quash the March 24, 2014 decision of the Judicial Committee. The Congregation responded by arguing the Court has no jurisdiction to review the decision to expel RW. In April 2015 Mr Justice Wilson in chambers ruled the Court does have jurisdiction because the expulsion decision has severe adverse consequences for RW. The Congregation appealed to the Court of Appeal on this jurisdictional issue.

The legal question at issue in this case is whether the Court has jurisdiction to engage in judicial review of the decision made by a non-statutory entity exercising power that is not sourced in legislation. On the one hand, the answer to this question has to be no. In our legal system, the Court’s inherent jurisdiction for judicial review is applied to ensure the Legislature, the Executive, and their delegates adhere to the limits of their authority, as well as exercise their powers reasonably and fairly. This is the essence of Justice Wakeling’s dissent in Wall. Justice Wakeling observes the Highwood Congregation is not governed by legislation, and that its conduct is completely lacking in statutory flavour (at paras 68 – 74). Justice Wakeling points out that in those rare cases where the Court has engaged in the judicial review of non-statutory entities, it typically does so with sparse reasoning (at footnote 36) or the case also involves an adjudication of legal rights. Justice Wakeling also concludes the expulsion of RW does not affect any of his legal rights and is thus a non-justiciable issue (at paras 126 – 141).

On the other hand, if we look past the legal structure it is possible to identify reasons why judicial review of the Congregation’s decision should be available to RW. This is a disciplinary proceeding with significant adverse consequences to RW and as such it is comfortable territory for judicial oversight. Indeed, several of the Supreme Court of Canada’s seminal judgments in administrative law have concerned or been related to disciplinary proceedings: dismissal of a probationary police officer in Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311 (CanLII); prisoners’ rights in Cardinal v Director of Kent Institution, [1985] 2 SCR 643 (CanLII); termination of employment in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII). Canadian courts have consistently given emphasis to adverse consequences suffered by an individual as a strong factor in deciding whether to grant relief in judicial review. This point is explicitly made by Justice Wilson at the chambers level in this case when he remarks “… I think this man has suffered in a way that does involve the court’s jurisdiction” (from the transcript of proceedings in chambers, cited at para 62 in Wall). And concern with process is what most often catches the eye of a scrutinizing court in judicial review. There is no shortage of concern with process here: 3 days prior notice of a hearing that could lead to severe personal and economic consequences; no written reasons for the expulsion; elements of institutional bias with key officials having overlapping roles. In short, the expulsion process administered by the Congregation fails to meet even the lowest measure of procedural fairness expected of Canadian statutory tribunals in a disciplinary context.

The majority judgment in Wall concludes the Court has jurisdiction to review the decision of a non-statutory religious organization when a breach of procedural fairness or natural justice is alleged (at para 22). The majority relies on a short line of authorities for this conclusion (at paras 17 – 21), none of which directly grapples with the point that judicial review in Canada is directed only at statutory entities exercising administrative power sourced in legislation. Particularly in relation to the application of procedural fairness, the classic doctrinal statement that procedural fairness or natural justice applies to public authorities comes from Justice Le Dain in the Supreme Court’s 1985 Cardinal v Director of Kent Institution decision (at para 14 – cited to Canlii):

This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. (emphasis added)

The decision that provides the strongest authority for the majority judgment in Wall seems to be the Supreme Court’s 1992 judgment in Lakeside Colony of Hutterian Brethren v Hofer, [1992] 3 SCR 165 (CanLII) reviewing a decision of a hutterite colony to expel some of its members (cited by the majority in Wall at para 15). However, it is arguable that in the Hofer case the expulsion decision was a justiciable issue because legal rights were at stake in membership with the colony (acknowledged by the majority in Wall at para 15). Moreover the Supreme Court applies the doctrine of procedural fairness to the colony’s decision, but it may be that the jurisdictional point raised in Wall was not argued extensively (Justice Wakeling notes the colony in Hofer conceded on this point, at para 105 in Wall).

I think the majority in Wall gets it right in result – that is, judicial review should be available for RW to challenge the fairness of the Congregation’s expulsion process. However, the majority judgment fails to provide adequate reasoning to justify what appears to be a significant extension to the scope of judicial review in Canada. By ruling the Court has jurisdiction to review the decision of a non-statutory entity, exercising powers not sourced in legislation, and which do not implicate legal rights, the Court notably expanded the list of decision-makers potentially subject to judicial review. It would have been preferable for the majority to grapple more directly with the threshold point and better identify what makes this case justiciable.

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Myths, Stereotypes, and Credibility in Sexual Offence Trials

Tue, 09/13/2016 - 10:00am

By: Drew Yewchuk

PDF Version: Myths, Stereotypes, and Credibility in Sexual Offence Trials

Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)

R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written.


The accused was charged with sexual assault and sexual interference (respectively sections 271 and 151 the Criminal Code of Canada). The accused (CG) was 16 at the relevant time; the complainant (RW) was 13. It was accepted at trial that ostensible consent was not a defence to the charge under section 151 (for an earlier post on ostensible consent see here). The complainant testified that the accused had pushed her to the ground in Kinsmen Park, removed her clothing and forced his penis into her vagina before she escaped and ran away (at para 7). In police statements and at trial, the accused repeatedly said that he had engaged only in consensual intercourse with the complainant though the location, number of occurrences and other details varied in his police statement, examination in chief, and cross-examination (at para 9-10). As is usual in a criminal trial, if the trial judge had accepted the testimony of the complainant without being left with any reasonable doubts based on the evidence of the accused, he would have convicted the accused. Oddly, if he had accepted the testimony of the accused, he also would have convicted the accused, because he admitted sexual activity with a person who was too young to consent. He acquitted the accused because he rejected the testimony of both (at para 12). Exactly what the trial judge concluded did occur was not altogether clear.


The accused admitted that he had engaged in illegal sexual activity with the complainant during the summer in question. The trial judge considered that these admissions could not be used to convict the accused as they were protected “under section 13 of the Charter and under the provisions of the Canada Evidence Act…” (at para 29) As noted by Justice Martin, however, those protections are only for the testimony of an accused that was compelled at an earlier proceeding (at para 35). The accused’s testimony in this case was “freely given in his own trial on the very charges before the court” (at para 37). The trial judge may or may not have relied on this reasoning to exclude the evidence – perhaps he simply found the accused totally unreliable (at para 39) – but “his failure to make an express finding about whether he believed the accused had sex with the complainant amounts to the omission of a key legal issue and is itself a reviewable error.” (at para 40)

The trial judge also appears to have considered that the illegal activity the accused admitted to was outside the scope of the charge (at para 30). Justice Martin found that the trial judge wrongly considered “that time was a crucial element of the offence.” (at para 44) The date of the offence is not an essential element of the offences in question – the trial judge considered the timing issue too narrowly.

Myths and Stereotypes

Justice Martin reviewed the historical provisions relating to the credibility of complainants in trials for sexual offences, pointing out that “Many such myths have their foundation in the same set of beliefs that gave rise to the special and replaced set of provisions, principles and practices that characterized the prior law on sexual offences.” (at para 65). The trial judge commented that the complainant did not scream or run for help (at para 68), potentially drawing upon the myth that a complainant could have resisted the rapist if they really wanted to (at paras 68-69). Furthermore, Justice Martin noted that the trial judge did not mention that the testimony of the complainant was that she actually did struggle, break free, and run away (at para 71).

The trial judge noted that the complainant did not immediately tell anyone about the sexual assault, and Justice Martin indicated that this appears to have drawn in the myth of recent complaint (at para 72). The recent complaint myth is that sexual assault will be reported immediately, and any delay is a reason to doubt the complainant. The trial judge also mentioned that the complainant’s aunt did not notice any change in the complainant’s behaviour following the assault – giving the appearance that he was considering the “myth that women who have really been raped will be hysterical and their terror and injuries will be plain to see” (at para 80).

Justice Martin ruled that these comments, without an explanation of their relevance, showed that the trial judge relied on prohibited assumptions and speculation amounting to an error of law (at paras 85-86). The trial judge’s reasons also failed to specify what inferences he had made with respect to the complainant’s testimony and her credibility more broadly (at para 103). These omissions, amongst others, led Justice Martin to conclude that the acquittal must be overturned, the necessary findings were not present to enter a verdict of guilty, and the appropriate remedy was to order a new trial (at para 51).


A trial does not allow for uncritical acceptance of testimony from any party. What R v CMG reiterates is that “certain categories of complainants should not start from a deficit position or face the additional barriers of being discredited based on myths and stereotypes.” (at para 58)

The trial judge did not explicitly state or apply the myths that Justice Martin identified. What he did was to state the facts that underpinned those myths, leave unexplained his inferences based on those facts, and conclude that the complainant was not credible. In this case, the omission of the discussion of the myths was an indication that the myths had been silently applied. However, this gap in his written reasons for judgment would be an issue (although likely not one reviewable on appeal) even if he had ultimately found the complainant credible. In line with the

principle that ‘justice must be done and be seen to be done’, complainants and the public should never be left in doubt about whether credibility assessments have been impaired by myths or stereotypes.

At first glance, it appears the trial judge said too much. While his judgment may have been overturned if the trial judge had not mentioned the facts that indicate his reasoning may have been based on myths and stereotypes, this clearly would not have resulted in a better judgment. The problem was that the trial judge wrote too little. In sexual assault cases where the underlying facts may support one or more rape myths, the trial judge would be better off not to shy away from mentioning those facts in the judgment (e.g. a delay in reporting the assault, a lack of evidence of struggle, or a less severe emotional reaction than a layperson would expect). A trial decision is improved by the inclusion of such facts, a review of the impermissible myths and stereotypes that such facts might lead to, and a clear statement that those inferences would be impermissible errors of law. The accused, complainant and public should be clear that the myths have no grounding in fact and no place in Canadian law. Such a statement serves both as a self-caution to the trial judge, and as an assurance to the parties and the public. Jennifer Koshan has previously written on R v Wagar, 2015 ABCA 327 (CanLII) here about the importance of jury cautions about rape myths and stereotypes and recommended trial judges administer self-cautions. R v CMG is another instance where such a self-caution may have been of assistance. Another recent example is R v JR, 2016 ABQB 414 (CanLII), where a trial decision tainted by rape myths was overturned on appeal, receiving much media coverage (see e.g. here and here). These decisions, even when corrected on appeal, damage public confidence in the justice system’s ability to treat sexual assault complainants fairly.

Cautions rejecting the myths and stereotypes surrounding sexual assault should appear not only during trial, but also in the written decision following those trials. Silence about the myths risks leaving a complainant in doubt that they received a chance to be heard and have their credibility determined fairly, the accused believing that the trial judge overlooked relevant evidence, and the public in doubt about whether justice was done. Stereotypes thrive in silence and wither under scrutiny; if they are to be purged from sexual assault trials it is necessary to confront them, not to ignore them.

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Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Fri, 09/09/2016 - 10:00am

By: Stephen Armstrong

PDF Version: Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)


The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.

In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.

By so deeply engaging in the balancing inquiry, the Court has indicated that it may be open to relying more heavily on the proportionality of effects stage in the future. This is a development which should be welcomed and will hopefully lead to greater transparency in the Court’s decision making in s. 1 cases.


In 2013, KRJ pleaded guilty to incest and the creation of child pornography (KRJ at para 8). The offences were committed between 2008 and 2011 (KRJ at para 8).

When a person is found guilty of incest or the creation of child pornography, s. 161 of the Criminal Code obliges the sentencing judge to consider making an order prohibiting the offender, upon release, from engaging in certain enumerated activities that might lead to the offender coming into contact with children (Criminal Code of Canada, RSC 1985, c C-46, s. 161).

At the time KRJ committed the offences to which he plead guilty, s. 161(1) read as follows:

  1. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or

(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.” (KRJ at para 9)

In 2012, the Safe Streets and Communities Act, SC 2012, c. 1, s. 16(1) amended s. 161 by broadening the scope of the activities which may be the subject of a sentencing judge’s prohibitory order. When KRJ pleaded guilty and was sentenced in 2013, paragraphs (c) and (d) of s. 161(1) read as follows:

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

The Charter right engaged in this case was s. 11(i), which guarantees the right of any person charged with an offence:

if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Issues on Appeal to the Supreme Court of Canada

At the Supreme Court, none of parties disputed that Parliament intended the amendments to s. 161(1) to operate retrospectively (KRJ at para 18). It was accepted by Justice Karakatsanis that Parliament intended the amendments to apply retrospectively (KRJ at para 18).

There were two main questions to be decided by the Court, summarized succinctly by Justice Karakatsanis at paragraph 17 of her judgment:

(1) Does the retrospective operation of s. 161(1)(c) and (d) of the Criminal Code limit s. 11(i) of the Charter?

(2) If so, is the limitation a reasonable one prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter?


As mentioned above, the Supreme Court divided three ways:

(1) The majority judgment authored by Justice Karakatsanis, and concurred in by Chief Justice McLachlin and Justices Cromwell, Moldaver, Wagner, Gascon and Côté, answered question 1 in the affirmative and found that a retrospective application of s. 161(1)(c) was not justified, but that a retrospective application of s. 161(1)(d) was justified (the “Majority”).

(2) Justice Abella’s dissent in part also answered the first question in the affirmative, but found that a retrospective application of both s. 161(1)(c) and (d) was not justified under s. 1.

(3) Justice Brown’s dissent in part also answered the first question in the affirmative, but found that a retrospective application of s. 161(1)(c) and (d) was justified under s. 1.

The Majority accordingly allowed KRJ’s appeal in part, ordering that s. 161(1)(c) could not be applied retrospectively, but that a retrospective application of s. 161(1)(d) was justified (KRJ at paras 115-116).

In their respective s. 1 analyses, the dissenters and the Majority agreed that the infringing measure pursued a pressing and substantial objective, and satisfied the rational connection and minimal impairment stages of the Oakes test. Where they disagreed was at the “proportionality of effects” stage, which led to their three separate conclusions under s. 1.

Reasons of the Majority (Question #1): Was KRJ’s s. 11(i) Right Infringed?

The legal test to determine whether a prohibition or sanction is a punishment under section 11(i) was established in R v Rodgers 2006 SCC 15 (CanLII) (“Rodgers”). It is a two part test:

(1) The measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and

(2) The measure must be imposed in furtherance of the purpose and principles of sentencing. (KRJ at para 28)

The majority at the BC Court of Appeal concluded that the sanctions under s. 161(1) were not imposed in the furtherance of the purpose and principles of sentencing because they were aimed at public safety (KRJ at para 14). This position was adopted by the Crown at the Supreme Court (KRJ at para 31).

The position taken by the BC Court of Appeal and the Crown raised two sub-issues the Majority needed to answer:

(1) Does a public safety objective necessarily exempt a law from the second branch of the Rodgers test? (KRJ at para 30)

(2) What role does the impact of a measure on an offender have in determining if the measure is a punishment under s. 11(i)? (KRJ at para 30)

Justice Karakatsanis quickly dispatched with the first sub-issue, answering in the negative. She found that it was “clear from the plain language of s. 718 [of the Criminal Code] that public protection is part of the very essence of the purpose and principles governing the sentencing process” (KRJ at para 33).

To address the second sub-issue, Justice Karakatsanis reformulated the Rodgers test:

(1) The measure must be a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and

(2) The measure must be imposed in furtherance of the purpose and principles of sentencing, or

(3) The measure must have a significant impact on an offender’s liberty or security interests (KRJ at para 41)

Applying the reformulated s. 11(i) test to s. 161(1), Justice Karakatsanis found that the 161(1)(c) and (d) prohibitions were consequences of conviction that form part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence (KRJ at para 50). The first part of the test was satisfied.

Justice Karakatsanis then went on to find that both the second and third parts of the test were satisfied, although only one or the other were required (KRJ at para 51).

The objective of 161(1) was to shield children from sexual violence by separating offenders from society, rehabilitate offenders, and deter future violence (KRJ at para 52). This objective aligned with the purposes and principles of sentencing (KRJ at para 52).

The 161(1)(c) and (d) prohibitions also had the potential for a non-trivial impact on the liberty and security interests of offenders because of the stigma attached, restrictions on employment, restrictions on the ability of an offender to interact in public and private spaces, and a possible significant deprivation of internet access (KRJ at para 54).

All three elements of the reformulated Rodgers test being satisfied, Justice Karakatsanis concluded that the newer version of s. 161 was “clearly” a more severe punishment than the previous version because of the expanded scope of activities covered in s. 161(1)(c) and (d) (KRJ at para 57). Therefore, a retrospective application of the new version of s. 161 infringed KRJ’s s. 11(i) right to the benefit of the lesser punishment and had to be justified under s. 1 of the Charter (KRJ at para 57).

Reasons of the Majority (Question #2): Justification under s. 1 of the Charter

As noted in the introduction, in order to justify the limitation of a Charter right or freedom the law must satisfy each component of the Oakes test. There must be a pressing and substantial objective, a rational connection between the measure and objective, minimal impairment of the right in question, and a proportionality of deleterious and salutary effects caused by the measure (KRJ at para 58).

The evidence presented by the Crown to justify the Charter infringement in this case was unique because neither the BC Provincial Court nor the BC Court of Appeal heard evidence on s. 1. The Supreme Court was therefore the court of first instance on the matter and none of the evidence was tried in the usual way it might have been in a trial setting (KRJ at paras 59-60).

The Pressing and Substantial Objective

An infringing law must pursue an objective of sufficient importance in the context of a free and democratic society to justify overriding constitutionally protected rights (KRJ at para 61). The relevant objective is not necessarily the objective of the law as a whole, but the objective of the infringing measure (KRJ at para 62, citing Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (CanLII) at para 20). Justice Karakatsansis identified the infringing measure as being the retrospective application of the amended version of s. 161 (KRJ at para 62).

Upon review of the legislative history, judicial interpretation, and design of s. 161, Justice Karakatsanis found the overarching purpose behind the amendments as a whole to be the enhancement of the protection s. 161 provides children against the risk of sexual violence (KRJ at paras 64-65). Naturally then, the objective behind retrospectively applying these amendments was to, “better protect children from the risks posed by offenders like the appellant who committed their offences before, but were sentenced after, the amendments came into force” (KRJ at para 65). This objective was found to “obviously” be pressing and substantial in a free and democratic society (KRJ at para 66).

Rational Connection

The means employed by the infringing law must be rationally connected to the pressing and substantial objective on the basis of reason or logic (KRJ at para 68). KRJ conceded that a retrospective application of s. 161 was rationally connected to the objective and Justice Karakatsanis did not take long to conclude on the basis of reason and logic that there was “clearly” a rational connection (KRJ at para 69).

Minimal Impairment

When there is an alternative means available which both achieves the government’s objective in a real and substantial manner and is less harmful to the right infringed, then the impugned law is not minimally impairing (KRJ at para 70).

It is worth noting at this point that Justice Karakatsanis earlier acknowledged and adopted a line of cases from lower courts which have imposed some constraints on when a s. 161 prohibitory order can be used and what form it must take (KRJ at para 48). The sentencing judge must be satisfied that:

(1) There is an evidentiary basis upon which to conclude the offender poses a risk to children,

(2) The specific terms of the order are a reasonable attempt to minimize the risk, and

(3) The content of the order carefully responds to an offender’s specific circumstances.

This framework affords a high degree of latitude to sentencing judges to allow them to tailor the order to the special circumstances of an individual offender and there will be no order imposed where there is no evidentiary footing for one. The discretionary nature of the orders ensures they will impair an offender’s right no more than is necessary to protect children and the requirement of an evidentiary basis ensures the orders will not be applied in an overly broad fashion (KRJ at paras 72-73).

Justice Karakatsanis also noted that a purely prospective application of the amended s. 161 would undermine the government’s objective because the recidivism rate for sex offenders is significant (KRJ at para 75). Additionally, striking down the retrospective application of the amendments at this stage would fail to grant sufficient deference to Parliament’s legislative choice of means (KRJ at para 75).

Accordingly, it was found that the retrospective application of the amendments was minimally impairing of s. 11(i) (KRJ at para 76).

Proportionality of Effects

Before embarking on her extensive 33 paragraph proportionality of effects analysis, Justice Karakatsanis made a critical observation on the final stage of the Oakes test. The proportionality of effects stage is important because it is the only part of the Oakes test that allows judges to transparently engage in a normative, value-laden discussion about whether the infringement of an individual’s Charter rights is justifiable (KRJ at para 79). This stage is, as Justice Karakatsanis noted, the very “essence of the proportionality enquiry at the heart of s. 1” (KRJ at para 79).

Proportionality of Effects: s. 161(1)(c)

There were three categories of effects that Justice Karakatsanis sought to balance:

(1) Deleterious effects on individual offenders: the expanded scope of s. 161(1)(c) constituted a substantial intrusion on the liberty and security interests of offenders because it would prevent them from freely participating in society (KRJ at para 81).

(2) Deleterious effects on society: retrospective application of punitive laws undermines the values protected by s. 11, namely fairness in criminal proceedings and respect for the rule of law (KRJ at para 82). Additionally, the Parliament’s lack of compelling evidence justifying retrospective application enhanced the deleterious effect because it showed a lack of respect for the principles underlying s. 11 (KRJ at para 83).

(3) Salutary effects for society: Justice Karakatsanis accepted that recidivism rates for sexual offenders were significant and that potentially hundreds of offenders could be caught under the retrospective application of the amendment (KRJ at paras 85-88). She therefore accepted that real risks to children were present and that retrospective application would mitigate these risks (KRJ at para 88).

In balancing these three sets of effects, Justice Karakatsanis noted that, while evidentiary issues are inherent when dealing with public policy, s. 1 requires that a limit be demonstrably justified according to, in the words of Chief Justice Dickson, a “stringent standard of justification” (KRJ at para 91, citing Oakes at para 65). The application of this “stringent standard” was the main bone of contention between the Majority and the dissenters.

In regards to the salutary effects of s. 161(1)(c), the Crown produced little, if any, direct evidence of the marginal benefit accrued by applying the new version of s. 161(1)(c) instead of the previous version (KRJ at para 89-90). Justice Karakatsanis also took issue with a lack of evidence as to why the new version had to be retrospective, finding general evidence of recidivism to be insufficient justification (KRJ at paras 93-94).

Justice Karakatsanis then characterized the deleterious effects of the measure as “significant and tangible”, as against the “marginal and speculative” benefits society stands to gain (KRJ at paras 91-92) and concluded that a retrospective application of s. 161(1)(c) could not be justified under s. 1 (KRJ at paras 95-96).

Proportionality of Effects: s. 161(1)(d)

There were at least five categories of effects that Justice Karakatsanis sought to balance for this measure:

(1)Deleterious effects on individual offenders: A complete ban on internet use would be a “significant deprivation of liberty”, erecting “massive barriers to an offender’s full participation in society” resulting in serious social and economic consequences for that individual (KRJ at 98).

(2) Deleterious effects on society: same as considerations applied as with s. 161(1)(c) above.

(3) Salutary effects for society: rapid technological development has changed the degree and nature of the risk of sexual harm to children, creating a legislative gap filled by the introduction of s. 161(1)(d) (KRJ at para 101). The internet has created new and qualitatively different opportunities to harm young people (KRJ at para 107). Such opportunities were not covered under the older version of s. 161 (KRJ at para 107). Justice Karakatsanis described the evidence of salutary effects as “greater and more certain than those stemming from s. 161(1)(c)” (KRJ at 108).

(4) Mitigation of deleterious effects to society: the fact that the law responds to a legislative gap in a swiftly changing social context, according to Justice Karakatsanis, actually makes it less unfair and less intrusive on the rule of law (KRJ at paras 110-111).

(5) Mitigation of deleterious effects on individuals: the adverse effects of this provision will only be imposed when there is an evidentiary basis that it will mitigate the risk of harm to children (KRJ at para 112). It should be noted this consideration would also have applied to s. 161(1)(c) but Justice Karakatsanis did not reference it in that section.

Justice Karakatsanis ultimately concluded that the Crown had a “compelling case” that the deleterious effects of s. 161(1)(d) were outweighed by its salutary effects (KRJ at para 114). As the evidence of the salutary effects was regarded as more direct and credible, and the deleterious effects were somewhat mitigated, the balance was in favour of justification. She also noted that the harm of sexual violence against young people was particularly powerful, the scheme under s. 161(1)(d) was flexible and discretionary, and that an internet prohibition was not among the most onerous of punishments (KRJ at para 114).

Justice Abella’s Dissent in Part

Justice Abella’s main point of departure with the Majority appears to be on the question of how strict the standard of justification should be for the Crown in this case (KRJ at para 124). Justice Abella would have held the Crown to the highest standard of justification (KRJ at para 124). She relied on the “absolutist language” of s. 11 of the Charter and on the Supreme Court’s recent s. 11(h) case, Canada (AG) v Whaling, 2014 SCC 20 (CanLII) (at para 79), where the Court required “compelling evidence” to justify a retrospective change to parole review, which infringed the claimant’s right not to be punished twice for the same offence (KRJ at para 124).

Justice Abella very clearly wanted direct evidence of the benefits to be gained by retrospectively applying the new law (KRJ at paras 128-129). Given the absence of such evidence, she would have found s. 161(1)(d) unjustified alongside s. 161(1)(c) (KRJ at para 130).

Justice Brown’s Dissent in Part

Justice Brown, while agreeing with the Majority on the s. 11(i) question, would have dismissed the appeal entirely because he found a retrospective application of both measures to be justified under s. 1 (KRJ at para 133).

Justice Brown criticised the Majority’s application of the Oakes test for:

(1) reading the purpose of the legislation too narrowly (KRJ at para 135),

(2) a rigid and acontextual application of Oakes, thereby avoiding the “unavoidable normative inquiry” at its heart (KRJ at paras 135-136)

(3) holding Parliament to an exacting standard of proof, denying Parliament its legislative policy-development role (KRJ at para 141),

(4) overstating the deleterious effects of s. 161(1)(c) while understating the salutary effects (KRJ at para 141), and

(5) finding a retrospective application of s. 161(1)(c) to be unjustified when their reasons for upholding the retrospective application of s. 161(1)(d) equally apply to s. 161(1)(c) (KRJ at para 141)

While Justice Brown raised several points of disagreement, in its essence his critique stems from a difference of opinion as to the proper amount of deference to grant to Parliament in this case, and accordingly, the proper standard of justification to apply. Justice Brown stressed that the analysis must be

“sensitive to policy-makers’ need for a measure of latitude to consider and try previously untried alternatives, particularly when confronting persistent and complex public policy concerns” (KRJ at para 144).

In my view, this departure from the Majority is the basis for his various points of criticism which ultimately led him to a different conclusion as to s. 161(1)(c).

Comparison to Alberta v Hutterian Brethren of Wilson Colony

In her general commentary on the proportionality of effects stage of the Oakes test, Justice Karakatsanis made a brief reference to Justice Abella’s dissent in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII) at para 149, agreeing with Justice Abella that much of the heavy lifting and balancing should be done at this final stage of the Oakes test (KRJ at para 78). Indeed, much heavy lifting was carried out by the Court at this stage in both cases.

In Hutterian Brethren, the claimants – a colony of Hutterites – successfully argued that their s. 2(a) Charter right to freedom of religion was infringed by a law which mandated photo identification for driver’s licences (Hutterian Brethren at paras 1-4). The claimants’ religious beliefs precluded them from having their pictures taken (Hutterian Brethren at paras 1-4). Chief Justice McLachlin, writing for the majority, found the limit on freedom of religion to be justified under s. 1 (Hutterian Brethren at para 104). Along the way, the Chief Justice breathed new life into the proportionality of effects stage by insisting on its importance and by engaging in a rare in-depth balancing analysis (Hutterian Brethren at paras 72-103).

Where in KRJ, Justice Karakatsanis required more concrete and direct proof of the marginal benefit of applying the new version of s. 161(1)(c) over the old version, Chief Justice McLachlin, writing for the majority in Hutterian Brethren, took a different approach:

Though it is difficult to quantify in exact terms how much risk of fraud would result from permitted exemptions, it is clear the international integrity of the system would be comprised (Hutterian Brethren at para 81)

…a government enacting social legislation is not required to show that the law will in fact produce the forecast benefits. Legislatures can only be asked to impose measures that reason and the evidence suggest will be beneficial. (Hutterian Brethren at para 85)

This is a starkly different approach to the standard of evidence required for justification. What can explain this difference?

The issue of deference and the evaluation of social science evidence in s. 1 cases has plagued the Supreme Court since Oakes (See S. Choudhry, “So what is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006), 34 SCLR (2d) 501). KRJ is one of the hopelessly nebulous cases where the state-versus-the-individual dynamic would seem to necessitate a “stringent standard of justification” (Oakes at para 65), but also where the public policy and social science based aspects around judging how to deal with recidivism and protect the rights of children would seem to oblige a more lax standard (Irwin Toy Ltd. v Quebec (AG) 1989 CanLII 87 (SCC) at pp 993-994, Canada (AG) v JTI-Macdonald Corp. 2007 SCC 30 (CanLII) at para 43).

Thus, while Justice Karakatsanis did note that a degree of deference was warranted in her s. 1 analysis, it would appear she did not affect so deferential a posture as to make it determinative of the outcome (KRJ at para 67).

On the other hand, Hutterian Brethren was a case based on social policy and balancing rights outside of the criminal law context. Accordingly, the majority of the Court appears to have been more willing to defer to the legislature’s judgment on how to effect the proper balance of societal interests versus those of a religious minority (See Hutterian Brethren at para 37).

Justice Abella’s approach has been consistent in each case, insisting in a high standard of justification, even outside of the criminal law context as in the case of Hutterian Brethren (See Hutterian Brethren at paras 135, and 156-162). And in each case she appears to have been unable to persuade a majority of her fellow justices on the Supreme Court, although perhaps the Majority’s conclusions on s. 161(1) were influenced by Justice Abella.

The Supreme Court’s jurisprudence concerning the fourth component of the Oakes test has been the subject of considerable commentary by legal scholars. For example, Professor Hogg has described the proportionality of effects stage as “redundant” and observed that it “has never had any influence on the outcome of any case” (Peter W. Hogg, Constitutional Law of Canada (2015 Student Ed.), at section 38.12(b)). Dieter Grimm noted that the final stage of the Oakes test plays a “more residual function in Canada”, which may be born of a “fear that a court might make policy decisions at this stage rather than legal decisions” (Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence” (2007) 57 UTLJ 383, at 393-394). The dominant narrative in the literature appears to be that, since the introduction of the Oakes test, our courts have been reluctant to meaningfully engage in the inherently value driven act of balancing deleterious and salutary effects of Charter infringing laws.

If the dominant narrative is true, then both Hutterian Brethren and KRJ would seem to buck the trend. One of Justice Brown’s critiques noted above was that the Majority in KRJ shied away from the inherently value-driven nature of proportionality (KRJ at paras 135-136). Respectfully, I could not more strongly disagree. Justice Karakatsanis spent fully 33 paragraphs balancing the deleterious and beneficial effects of the measures and did not shy away from the inherently value-driven nature of proportionality at all.

Just because the Majority was not swayed by the evidence does not mean they have applied Oakes in an unprincipled and mechanical fashion. Indeed, in the absence of hard proof, it was principles and values which moved the Majority to its decision on s. 161(1)(c):

It may be tempting to conclude that mitigating the risk of sexual violence to even one child is worth the costs….Such an approach ascribes almost no value to the right. Section 11(i) protects fundamental interests that can be overridden only in demonstrably compelling circumstances. (KRJ at para 95)

Far from shying away from the normative inquiry, the Majority embraced it. They have stated plainly that our rights and freedoms are not so cheaply held that they may be overridden merely at the say-so of Parliament.

In the final analysis, while the Supreme Court may have breathed new life into the proportionality of effects stage in Hutterian Brethren, the Court has confirmed that the final stage of Oakes does indeed have teeth by using it to overturn government policy in KRJ. If our Courts continue to show a greater willingness to engage in the balancing inquiry at the heart of the Oakes test, there will be greater transparency in judicial decision making in s. 1 cases, and we will be all the richer for it. Such a development should be welcomed.

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The South China Sea Award and the duty of “due regard” under the United Nations Law of the Sea Convention

Thu, 09/08/2016 - 10:00am

By: Julia Gaunce

PDF Version: The South China Sea Award and the duty of “due regard” under the United Nations Law of the Sea Convention

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016

As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.

This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC.

The Tribunal concluded that China was in breach of its obligation of “due regard” under LOSC Article 58(3):

… China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of [LOSC]. (at para 757; emphasis added)

This post elaborates on that conclusion.


The South China Sea is a semi-enclosed sea in the western Pacific Ocean, south of China and west of the Philippines, important for shipping, fisheries, a biodiverse coral reef ecosystem, and the potential for substantial oil and gas resource exploitation (at para 3). Mischief Reef and Second Thomas Shoal are coral reefs located in the centre of the Spratly Islands, in the southern part of the South China Sea (at paras 290, 3).

The Philippines’ Submission No. 9 concerned Chinese government and fishing vessel activities at Mischief Reef and Second Thomas Shoal, and was one of six submissions (Nos. 8 to 13) dealing with Chinese activities in the South China Sea. The Tribunal’s considerations of Submissions Nos. 8, 12 and 14 (not analysed in this post) all dealt with activities at Mischief Reef and Second Thomas Shoal, and together comprise a broader factual background to Submission No. 9.

In the case of Submission No. 8, the Tribunal noted that the core of the dispute with respect to living and non-living resources was that both the Philippines and China had acted on the basis that each, and not the other, had exclusive rights to these resources (at para 696). With respect to living resources, for example, China promulgated a 2012 fishing moratorium in respect of an area where the Philippines claimed fisheries jurisdiction (at para 712). Although the Tribunal decided the Philippines had not established that China prevented Filipino fishermen from fishing at Mischief Reef or Second Thomas Shoal, it noted it could “readily imagine” that the presence of Chinese enforcement vessels at both locations, combined with China’s general claim to fisheries jurisdiction, could lead Filipino fishermen to avoid such areas (at para 715).

In respect of Submission No. 12 on China’s occupation and construction activities on Mischief Reef, the Tribunal noted that these included the construction of artificial islands and installations (such as concrete platforms supporting three-story buildings, a helipad, communications equipment, wharves, fortified seawalls, temporary loading piers, cement plants, a 250-metre-wide channel to allow transit into the lagoon) and the presence of dredger vessels, cargo ships and ocean tugs (at paras 994, 1003, 1009, 1004).

Regarding Submission No. 14, the Tribunal took note of the vessel grounded on Second Thomas Shoal in 1999 by the Philippine Navy on board of which the Philippines has maintained a small detachment of marines, reports of Chinese government vessels and unidentified aircraft in the vicinity, and the interception of two Philippines supply vessels by two Chinese Coast Guard vessels (at paras 1113, 1115, 1117, 1123).

As factual background related specifically to Submission No. 9, the subject of this post, the Tribunal noted that, since 3 May 2013, China had maintained a “significant presence” of naval and China Marine Surveillance vessels near Second Thomas Shoal (at para 719). The government vessels were accompanied by fishing vessels (at para 720). The Tribunal also noted reports of Chinese fishing vessels escorted by Chinese government ships at Mischief Reef (at para 721). The Tribunal concluded that accounts of officially organised Chinese fishing fleets and close coordination between Chinese fishing vessels and government ships in the area supported the inference that China’s fishing vessels were organised and coordinated by the government—and that, in any event, Chinese government vessels were aware of the actions of Chinese fishermen and would have been able to halt them (at para 755).

Positions of the Parties

In its submissions on issue No. 9 the Philippines relied on the ITLOS advisory opinion in the Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015 (Fisheries Advisory Opinion) for the interpretation that, under LOSC Articles 58(3) and 62(4), a state has a due diligence obligation to ensure its nationals and vessels comply with coastal state regulations in the EEZ and do not engage in illegal, unreported and unregulated (IUU) fishing activities (at para 726; and see SCSA Merits Hearing Transcript (Day 4) pp 84-87, citing Fisheries Advisory Opinion at paras 123, 124, 128, 138). China’s position (as described in diplomatic correspondence with the Philippines, China being a non-participant in the proceedings) was that it did not consider the Philippines to have rights in the relevant area (at para 730).

The Tribunal’s Considerations

The Tribunal concluded that it had jurisdiction with respect to Submission No. 9 on the basis that none of the features claimed by China are capable of generating any entitlement to an EEZ overlapping that of the Philippines (at paras 733-734), and that therefore Articles 15, 74, 83 on delimitation and Articles 297(3)(a), 298(1)(a)(i), 298(1)(b) on exceptions to jurisdiction do not apply (at paras 694-695).

The Tribunal identified the law applicable to the issue of China’s “presence” in the area of Mischief Reef and Second Thomas Shoal (at paras 735-741) as including two elements: first, LOSC Article 61(1) dealing with the jurisdiction of the coastal state (the Philippines) as to the allowable catch within the EEZ, and LOSC Article 62(2) and (3) as to access by flag state vessels to surplus allowable catch, and second—with particular emphasis—Article 62(4) on the obligations of flag state nationals fishing in the coastal state’s EEZ, and Article 58(3) on the obligation of flag states in the coastal state’s EEZ. This last provides that:

In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. (emphasis added)

The Tribunal’s interpretation of “due regard” under Article 58(3) contains a number of steps.

First, with respect to the “nature” of the obligation, the Tribunal, without further comment, references the observations in the Award on the Merits of the Annex VII Tribunal in the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), 18 March 2015 (Chagos) with respect to “due regard” under Article 56(2) (not 58(3)) reproducing from that Award as follows:

… the ordinary meaning of “due regard” calls for the [first State] to have such regard for the rights of [the second State] as is called for by the circumstances and by the nature of those rights. The Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of [the second State’s] rights; nor does it uniformly permit the [first State] to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches. (at para 742, citing Chagos Award at para 519) (square brackets added by the SCSA Tribunal)

Second, remarking on the specific context of the duties of a flag state with respect to fishing by its nationals in a coastal state’s EEZ, the Tribunal noted its agreement with the reasoning of ITLOS in its Fisheries Advisory Opinion, stating that:

…[ITLOS] interpreted the obligation of due regard, when read in conjunction with the obligations directly imposed upon nationals by Article 62(4), to extend to a duty “to take the necessary measures to ensure that their nationals and vessels flying their flag are not engaged in IUU fishing activities.” The Fisheries Advisory Opinion goes on to note that:

the obligation of a flag State . . . to ensure that vessels flying its flag are not involved in IUU fishing is also an obligation “of conduct”. . . . as an obligation “of conduct” this is a “due diligence obligation”, not an obligation “of result”. . . . The flag State is under the “due diligence obligation” to take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag. (at para 743, citing Fisheries Advisory Opinion at paras 124, 129)

Finally, applying Article 58(3) the Tribunal determined that:

… [Evidence] support[s] an inference that China’s fishing vessels are not simply escorted and protected, but organised and coordinated by the Government…

The obligation to have due regard to the rights of the Philippines is unequivocally breached when vessels under Chinese Government control act to escort and protect Chinese fishing vessels engaged in fishing unlawfully in the Philippines’ [EEZ]. (at paras 755-756)


In the course of its brief consideration of the duty of “due regard,” the Tribunal makes no direct use of the interpretative rules set out in the Vienna Convention on the Law of Treaties (VCLT)–neither explicitly, nor implicitly referencing the interpretative approach outlined in VCLT Articles 31 and 32 (ordinary meaning, context, object and purpose, or any “supplementary” interpretative means) or to the intentions of the parties.

It might have done. Earlier in the Award, the Tribunal elaborated on the procedural safeguards that ensured China suffered no disadvantage with respect to evidence and claims as a result of its non-participation in the proceedings (at paras 119-121). The Tribunal might have been well advised to take a similar approach with respect to the interpretation of “due regard”.

Instead, as noted above, the SCSA Tribunal relies heavily on the reasoning of two prior decisions, the Chagos Award and the Fisheries Advisory Opinion.

While not strictly a source of international law, reference to international jurisprudence is nevertheless commonplace in practice, whether for adjudicative consistency, efficient reference to existing law, or the making of new law through clarification of existing law (see for discussion Thomas Buergenthal, “Lawmaking by the ICJ and Other International Courts” (2009) 103 Proceedings of the Annual Meeting (American Society of International Law) 403, and Harlan Grant Cohen, “Theorizing Precedent in International Law” and Gleider Hernández, “Interpretative Authority and the International Judiciary” both in Andrea Bianchi, Daniel Peat & Matthew Windsor eds, Interpretation in International Law (Oxford: OUP, 2015)).

The Chagos Award on its own might not obviously represent an interpretative consensus on the meaning (or nature) of “due regard”, even if that were possible for a duty the content of which will necessarily arise from the specific circumstances under consideration. Like the SCSA, Chagos was decided by an Annex VII Tribunal which did not elaborate extensively on its interpretative reasoning with respect to “due regard”, although that Tribunal did implicitly refer to the VCLT in referring (albeit abruptly) to the “ordinary” meaning of the term.

Also, as noted by the SCSA Tribunal itself (at para 742), the Chagos Tribunal had before it the “reversed situation”—that is, the question of the “due regard” duty of the coastal state in the EEZ under Article 56(2), rather than “due regard” duty of the flag state under Article 58(3). The SCSA Tribunal does not explicitly conclude whether it equates the respective “due regard” duties of coastal and flag states or whether the interpretation of the one can serve as context for interpretation of the other. The understanding that “due regard” in LOSC Articles 56(2) and 58(3) is mirrored—in the sense of being in the first instance equally weighted or without pre-eminence as between a coastal state (with its sovereign rights) and a flag state (with its freedoms of the high seas)—has been echoed in jurisprudence and literature, but there is not universal consensus on this point. (See, for example, M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v Guinea), Separate Opinion of Judge Laing, [1999] 3 ITLOS Rep 10 at para 52, M/V “Virginia G” (Panama v Guinea-Bissau), Dissenting Opinion of Judge ad hoc Sérvulo Correia [2014] ITLOS Rep 1 at para 16, Alexander Proelss, “The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited” (2012) 26 Ocean Yrbk 87, James Kraska, “Resources Rights and Environmental Protection in the Exclusive Economic Zone” in Military Activities in the EEZ: A U.S. China Dialogue (Newport, Rhode Island: China Maritime Studies Institute, U.S. Naval War College, 2010) 75.) Also, apart from the mutual duties of “due regard” under Articles 58(3) and 56(2), the two provisions elaborate on the respective duties of coastal and flag states differently. Under Article 58(3) the flag state has the general obligation of “due regard” as well as the specific duty to “comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part”, while under Article 56(2) the coastal state’s twin obligations of “due regard” and to “act in a manner compatible with the provisions of [LOSC]” are both framed more generally.

As to the “nature” of the duty of “due regard”, the obligation includes, or is, a duty to balance concurrent coastal and flag state entitlements and duties—as described, for example, in the Chagos Award passage reproduced by the SCSA Tribunal:

…the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches. (at para 742, citing Chagos Award at para 519) (square brackets added by the SCSA Tribunal)

The Chagos Tribunal applied this balancing analysis as follows:

There is no question that Mauritius’ rights have been affected by the declaration of the MPA. In the territorial sea, Mauritius’ fishing rights have effectively been extinguished. … the [Respondent] United Kingdom’s undertaking for the eventual return of the Archipelago gives Mauritius an interest in significant decisions that bear upon its possible future uses… The Tribunal considers Mauritius’ rights to be significant and entitled, as a matter of good faith and the Convention, to a corresponding degree of regard. (Chagos Award at para 521)

The SCSA Tribunal does not replicate this calculus exactly (i.e. it does not directly contemplate the specific importance of the interests and activities of China and the Philippines, nor impairment or alternative approaches), though it does appear to balance relevant LOSC provisions in the course of its conclusion on the meaning of “due regard” under Article 58(3):

Given the importance of fisheries to the entire concept of the exclusive economic zone, the degree to which the Convention subordinates fishing within the exclusive economic zone to the control of the coastal State, and the obligations expressly placed on the nationals of other States by Article 62(4) of the Convention, the Tribunal considers that anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention. (at para 744)

Presumably a balancing analysis of concurrent coastal and flag state rights and duties is more relevant with respect to an activity by one state that is prescribed (the performance of a duty) or protected (for example, the declaration of an Marine Protected Area by a coastal state, as in Chagos, or navigation by a flag state) but which nevertheless might impair the interests of another state, rather than to an activity that is unlawful in the first instance, such as organizing and coordinating IUU fishing activities in another state’s EEZ.

With respect to the content of due diligence, the SCSA Tribunal goes only so far as to note that:

In many cases, the precise scope and application of the obligation on a flag State to exercise due diligence in respect of fishing by vessels flying its flag in the exclusive economic zone of another State may be difficult to determine. (at para 754)

An analysis of the specific content of due diligence is presumably unnecessary in this case given that China’s conduct was found to be beyond the scope of diligence—that is, its government vessels were found to have escorted, protected, organized and coordinated IUU fishing activities (at paras 754-756).

The SCSA Award is, notably, the first decision to determine a breach of “due regard” obligations by a flag state under Article 58(3) and (agreeing on this with the Fisheries Advisory Opinion) framing the breach as arising from a violation of a general principle of international law not directly expressed in LOSC (see Fisheries Advisory Opinion at para 110). In contrast, the two decisions that have found breaches of “due regard” by a coastal state under Article 56(2), the Chagos Award and the Award on the Merits of the Annex VII Tribunal In the Matter of The Arctic Sunrise Arbitration (Netherlands v Russia), 14 August 2015, each framed the respective breaches of “due regard” in terms of conduct incompatible with LOSC provisions other than Article 56(2) (see Chagos Award at paras 520, 534, 540, 544; and Arctic Sunrise Award at paras 231, 333.)

This blog post will be cross-posted on the JCLOS Blog, the blog of the K.G. Jebsen Centre for the Law of the Sea, the University of Tromsø.

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The International Human Right to Science and its Application to Geoengineering Research and Development

Wed, 09/07/2016 - 10:00am

By: Kristin Barham and Anna-Maria Hubert

PDF Version:  The International Human Right to Science and its Application to Geoengineering Research and Development

International Agreements Commented On: Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights

Scientific and technical advances bring unquestioned benefits, but they also generate new uncertainties and failures, with the result that doubt continually undermines knowledge, and unforeseen consequences confound faith in progress.”

  • Sheila Jasanoff, “Technologies of Humility: Citizen Participation in Governing Science” (2003) 41 Minerva 223, 224

There is a growing body of social science literature emphasising a need for science and technological innovation to be more accountable to society and to take into account the full spectrum of uncertainties surrounding these processes. These calls are often manifested as calls for greater reflexivity, transparency and public participation in R&D. Environmental law – with its focus on the prevention of environmental harm and precaution – provides an important site for regulation and governance for many advances in science and technology. There is an obvious logic to this choice, given the countless examples of technologies that have contributed to environmental damage at various phases of their lifecycles. However, there are conceptual limits to the application of environmental law for governing upstream R&D, as environmental obligations primarily aim at preventing or minimizing actual physical harm to the environment. Precautionary risk assessment and management are examples of governance tools for asserting greater control over research and innovation processes. However, although environmental law is increasingly informed by a broader framework of sustainable development that draws upon a range of legal subject areas, an environmental framing does not directly target the social and ethical concerns that dominate the early stages of science and the development of emerging technologies.

The specific concerns raised by small-scale geoengineering research illustrate this point nicely. Geoengineering is commonly defined as “deliberate large-scale interventions in the Earth’s natural systems to counteract climate change” (Oxford Geoengineering Programme). Larger-scale climate response tests or deployment of geoengineering at material scales are likely to cause a risk of significant harm to the environment or human safety. By contrast, the environmental impacts of initial research projects may be negligible in comparison to other everyday commercial activities. Social scientists point out, however, that precautionary governance may be necessary in the face of the social, political and ethical implications of the knowledge acquired from geoengineering research. They identify the ‘sociotechnical risks’ of geoengineering as including premature entrenchment, path dependency and lock-in (see, e.g., Rob Bellamy, “A Sociotechnical Framework for Governing Climate Engineering” (2016) 41 Science, Technology & Human Values 135).

This blog post highlights the contribution of international human rights law – in particular, the frequently overlooked ‘right to science’ – in providing a supplementary normative underpinning for the governance of sciences and emerging technologies. We begin by outlining legal sources and legal status of this right in international law. We then go on to provide a brief overview of the normative development of this right in the context of ongoing processes established under the auspices of the United Nations Human Rights Council. Finally, we point out some of the implications of the right to science in informing responsible research practices and institutional arrangements for the conduct of geoengineering research.

The Right to Science in International Human Rights Law

Geoengineering will touch on many human rights, but it is the so-called ‘right to science’ that best functions as a normative framework for informing research governance. The right to “share in scientific advancement and its benefits” was first recognized in Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and later reiterated in Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR). The Covenant provides a comprehensive articulation of the right to science, including the general right of everyone to “enjoy the benefits of scientific progress.” With 164 States Parties, the ICESCR has near universal participation. Parties are legally bound to respect, protect and fulfill the rights articulated in the Covenant. It requires that States Parties promote “the development and the diffusion of science” (article 15(2)) and “recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific field” (article 15(3)). In 2013, an Optional Protocol entered into force that sets forth an international complaint and inquiry mechanism which allows the Committee on Economic, Social and Cultural Rights to consider complaints from individuals or groups who claim their rights under the Covenant have been violated and have not received a domestic remedy. The right to science has also been expressed in varying forms in national law with Ecuador, Paraguay and the Republic of Moldova reproducing the scope of the Covenant, and States such as Germany fully protecting freedom of scientific research under its constitution (A/HRC/20/26, para 13).

Normative Development Right to Science and its Implications for the Governance and Regulation of Geoengineering Research

Although the right to science is articulated in binding international treaties, its normative content is vague and underdeveloped. In recognition of this, UN Special Rapporteur Farida Shaheed in the field of cultural rights for the UN Human Rights Council set out a normative framework for the right to science in her 2012 report on “The right to enjoy the benefits of scientific progress and its applications” (A/HRC/20/26). The Special Rapporteur’s report defines the term ‘science’ broadly as encompassing all “knowledge that is testable and refutable, in all fields of inquiry, including social sciences, and encompassing all research” (A/HRC/20/26, para 24). Although this definition provides practical guidance, it is important to bear in mind that the problem of defining the scope and content of the meaning of scientific research is a growing issue in international law. It has cropped up, for example, on several occasions in the context of defining the scope of research exemptions (see, e.g., Whaling in the Antarctic Case (Australia v Japan; New Zealand Intervening) [2014] ICJ; LC-LP.2(2010) on the Assessment Framework for Scientific Research involving Ocean Fertilization).

The UN report further asserts that the normative content of the right to science has four dimensions: (1) access for everyone to the benefits of science, (2) opportunities for everyone to contribute to the scientific process and the freedom indispensible for scientific research, (3) participation for individuals and communities in scientific decision-making, and (4) an enabling environment fostering the conservation, development and diffusion of science and technology (A/HRC/20/26, para 25). All of these elements have implications for the governance and regulation of geoengineering research, and much more can be said on these points, in particular, regarding the third aspect about providing a greater role for citizen participation in the management of technology. However, in the interest of space, the first two elements are examined in further detail below.

Access to the Benefits of Science

Underpinning the right to science is the guarantee of access to the benefits of science. States must guarantee their citizens universal access without discrimination. This means, inter alia, that everyone has the right to access the benefits of science regardless of gender, race, religion or any other defining characteristic (A/HRC/20/26, para 29). The UN report conveys that the ‘benefits’ of science “encompass not only scientific results and outcomes but also the scientific process, its methodologies and tools” (A/HRC/20/26, para 24).

Experts have identified access to scientific information as a key element for the good governance of science and innovation processes. For example, the Third Oxford Principle for geoengineering governance encourages “disclosure of geoengineering research and open publication of results.” Though recognizing that disclosure does carry risks relating to the misuse of scientific data, the authors of the Oxford Principles nonetheless argue for full disclosure to the extent that the “burden of proof should fall on the advocates of any restriction” (Steve Rayner and others, “The Oxford Principles” (2013) 121 Climatic Change 499, 507). Transparency is an end in itself, but also serves a governance function by enhancing legitimacy and the effective and fair distribution of power in decision-making (see further Craik and Moore). Within the environmental law context, open disclosure of scientific information is thought to support implementation and compliance with governance and regulatory regimes, promote public awareness and engagement, and foster trust in institutions and processes (Anne Peters, ‘Towards Transparency as a Global Norm” in Andrea Bianchi and Anne Peters (eds) Transparency in International Law (Cambridge University Press 2013) 599–600).

The guarantee of access to information for researchers is also essential for the freedom of scientific research, described below. It encompasses access to the applications of science, to scientific knowledge and information, scientific literature, data, materials, samples and subjects (A/HRC/26/19, para 15). However, Craik and Moore point out overly onerous disclosure requirements could also hamper scientific progress. Against this backdrop, “a key source of tension in the design of disclosure mechanisms will be balancing the demands for high levels of participation and deliberation against the burdens that these demands place on researchers.” A human rights approach could support procedural fairness and inform the balancing of competing rights in establishing and administering rules for research projects. In particular, legal and ethical disclosure requirements should be subject to the principle of proportionality according to which “non-physical, informational risks” should be treated less onerously than direct physical interventions with the potential to harm the environment or threaten safety (BM Knoppers and others, “A human rights approach to an international code of conduct or genomic and clinical data sharing” (2014) 133 Human Genetics 895).

The Human Rights Council report on the right to science defines ‘scientific progress’ as attributing “positive impact” of science and innovation on human wellbeing. In this vein, it is noted that technology affecting human rights is to be given particular attention (A/HRC/26/19, para 29). Some geoengineering proposals, and, in particular, stratospheric aerosol injection, raise serious human rights concerns. These are related to the preservation of the “international democratic order” both at the domestic level in terms of public participation and consultation on geoengineering and at the international level concerning interference in the affairs of sovereign states in accordance with Article 2(7) of the United Nations Charter (de Zayas, International Law Association (ILA) Panel on Geoengineering (New York, 24 October 2014); see also Werrell and Femia, “CIA Director on the Geopolitical Risks of Climate Geoengineering” The Center for Climate and Security (25 July 2016)).

The Opportunity for Everyone to Contribute to the Scientific Process

The second normative aspect of the right to science is the opportunity for everyone to contribute to the scientific process and have the necessary freedom to do so. This freedom intersects with a variety of other human rights, including the right to mobility, freedom of expression and thought. Most significantly, however, it encapsulates the traditional guarantee of the so-called ‘freedom of scientific research’, which provides for research to be undertaken without political or other interference. This freedom is broad in scope, protecting the freedom of association, inquiry, opinion and expression and extends to all persons, not just professional scientists (A/HRC/26/19, para 15).

The freedom of scientific research is often cited as an argument against stringent governance of geoengineering research (see, e.g., European Commission, European Transdisciplinary Assessment of Climate Engineering (EuTRACE); Edward A Parson and David W Keith, “End the Deadlock on Governance of Geoengineering Research” (2013) 339 Science 1278, 1278). However, the right of free scientific enquiry is not absolute. This point is underscored in several soft-law instruments including in the 1999 UNESCO Declaration on Science and the Use of Scientific Knowledge, according to which “[a]ll scientists should commit themselves to high ethical standards, and a code of ethics based on relevant norms enshrined in international human rights instruments should be established for scientific professions” (para 41). Principles for the responsible conduct of scientific research increasingly extend beyond research involving human and animal subjects to cover ecological research conducted in the open environment (see, e.g., Hubert, “Marine Scientific Research” in Markus and Salomon (eds) Handbook on Marine Environmental Protection: Science, Impacts and Sustainable Management (Springer, in press)).

Clearly, there is a balance to be struck by which “the scientific enterprise remains free of political and other interference, while guaranteeing the highest standards of ethical safeguards by scientific professions” (A/HRC/26/19, para 39). This determination regarding limitations on the freedom of scientific research, will be heavily dependent upon the relevant factual circumstances and should be subject to a precautionary approach in the face of large uncertainties (see Hubert and Reichwein, “An exploration of a code of conduct for responsible scientific research involving geoengineering” (2015) IASS Working Paper, InSIS Occasional Paper No 1. Potsdam & Oxford., Draft Article 8).

Conclusion and Next Steps

A human rights framework can help to bolster the role of environmental law in the establishment of principles, policies and procedures for governing science and emerging technologies. While many general human rights articulated in international law are of consequence for

geoengineering research and development, the normative framework of the right to science has particular relevance. This right has the potential to enhance accountability, transparency and participation, particularly in addressing the sociotechnical risks associated with early research and innovation processes. One advantage of this approach is that the human right to science applies regardless of the scale, duration or environmental impact of the research project. Its normative content is vague and not fully elucidated. However, in light of its universal scope and legally enforceable mechanisms, it provides an important legal basis for the development of responsible research practices grounded in the fundamental principle that that scientific advancement and its benefits should extend to everyone.

Research for this blog post was made possible by a generous grant from the V. Kann Rasmussen Foundation in support of the Geoengineering Research Governance Project (GRGP). The GRGP is an interdisciplinary study on potential arrangements for the governance and regulation of geoengineering research. It is a joint initiative led by Professor Anna-Maria Hubert at the Faculty of Law at the University of Calgary in collaboration with the University of Oxford and Institute of Advanced Sustainability Studies, Potsdam (IASS). You can learn more about the project here:

This comment was originally posted on The Forum for Climate Engineering Assessment,

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