By: Lisa Silver
Case Commented On: Regina v Stinert, 2015 ABPC 4
For years the efficacy of the preliminary inquiry has been questioned, studied and pronounced upon by lawyers, government officials, and the courts. Despite debate and amendments, the inquiry still exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen,  2 SCR 93 (at page 105), “the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” However, the preliminary inquiry is at risk. Both levels of government see no value in the procedure, only costs. The courts, since Skogman, have followed suit finding the preliminary inquiry irrelevant and contrary to the efficient and effective administration of justice. Certainly, the recent Alberta Provincial Court decision in Regina v Stinert, 2015 ABPC 4 reflects this view and, as argued in this post, may signal the end of the preliminary inquiry.
The preliminary inquiry discussion started benignly with the call for the abolition of the grand jury system; an English common law procedure requiring a panel of 24 jurors to evaluate the charges to determine if the case should proceed to an Indictment. The grand jury was ultimately codified in the 1892 Criminal Code but not before a vigorous debate on the issue. Prior to presenting the final version of the Criminal Code, the government requested input on the grand jury from justice officials including eminent judges. This correspondence, as well as the subsequent vote, is documented in the Sessional Papers No. 66 from the Sessional Papers of the Parliament of the Dominion of Canada, Volume 17, 1891.
The vote on the issue was too close to command any change, with 48 judges and attorneys general in favour of abolishing the practice, 41 against abolition and 12 undecided on the issue. Instead, the grand jury system was abolished by attrition as individual provinces simply stopped using the practice. Even so, the ability to convene a grand jury remained in the Code until finally repealed in the 1985 Criminal Code amendments. To this day, s. 576(2) still specifically precludes the preferment of a bill of Indictment before a grand jury. Ironically, the principle argument advanced in favour of eliminating the grand jury inquiry, which Supreme Court of Canada Justice Gwynne called in the 1891 debate “more ludicrous than real,” was the existence of the preliminary inquiry as the true procedural safeguard against the power of the state.
The main purpose of the preliminary inquiry is the committal function. To determine this, a preliminary inquiry justice considers whether or not there is sufficient evidence to commit the accused to trial pursuant to s. 548 of the Criminal Code. If the evidence is insufficient for committal, the accused will be discharged. In those circumstances, the Crown still has the authority to prefer an Indictment under s. 577 of the Code with the written consent of the Attorney General or Deputy Attorney General.
Although the test requires a fairly low evidential threshold, there are cogent illustrations of the impact of this discharge power. An example is found in the case of Susan Nelles, who was the pediatric nurse on duty when a number of babies died in the cardiac ward of the Hospital for Sick Kids in the early 1980s. She was ultimately charged with first-degree murder of four children by allegedly injecting them with lethal doses of the drug digoxin. The subsequent preliminary inquiry revealed a complete lack of evidence for the charge, resulting not only in her discharge but also in an inquiry into the deaths. In this way, a preliminary inquiry protects an accused from the awesome power of the state and can also provide a forum safe from the vagaries of public opinion.
Nevertheless, according to Mr. Justice Estey in Skogman, the preliminary inquiry serves an additional purpose, derived through usage, of “a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present” (at page 105). It is this ancillary purpose, grounded in the right of an accused to make full answer and defence, which garners the most criticism and provides support for abolition. This argument suggests that with the advent of the Charter and the stringent disclosure requirements of Stinchcombe,  3 SCR 326, the preliminary inquiry is no longer a necessary discovery tool.
In the 1985 Arviv decision, 19 CCC (3d) 395, 1985 CarswellOnt 97, the highly regarded criminal law jurist Mr. Justice Martin, writing for the Ontario Court of Appeal, made explicit the connection between the inquiry discovery function and the disclosure obligation when he commented on “the failure to institutionalize procedures for the disclosure of the Crown’s case has contributed to the development of this function of the preliminary hearing. A preliminary hearing is not, of course, the only way of providing disclosure or discovery of the Crown’s case” (at para 31). This added caveat is clear: there are other less costly and time efficient ways to fulfill disclosure requirements. Thus in Arviv, the court found that a direct Indictment depriving the accused of a preliminary inquiry, and the subsequent loss of the ability to cross examinee the main Crown witness prior to trial, was not contrary to s. 7 of the Charter provided there was adequate disclosure.
Coincidentally, it was Mr. Justice Martin who earlier chaired and wrote the majority opinion of the 1982 Ontario Bench and Bar Council Report of the Special Committee on Preliminary Hearings. Unsurprisingly, the majority report called for an end to the preliminary inquiry to be replaced by a robust disclosure procedure. Notably, there was a minority report submitted by two prominent defence counsel, Earl Levy, Q.C. and the now retired Ontario Superior Court Justice Ron Thomas, which cautioned against the removal of the inquiry process. Despite the controversy, the preliminary inquiry seemed, for a time, to be safe from legislative abrogation.
About a decade later, in the O’Connor case,  4 SCR 411 the Supreme Court of Canada, in an all too familiar fractured mid-nineties type of decision, had an opportunity to weigh in on the matter in the context of the production of third-party records. Madam Justice L’Heureux-Dubé, writing in obiter on this issue, reiterated the stance articulated in Arviv and, in a strongly worded rebuke directed toward defence counsel, she commented (at para 170) that:
Although preliminary inquiry judges are not permitted to determine the credibility of witnesses, one might hazard to say that the ancillary purpose of “discovery” has lately begun to eclipse the primary purpose of sparing the accused the gross indignity of being placed on trial in circumstances where there is simply insufficient evidence to justify holding the trial at all. One provincial court judge, in the course of a thoughtful discussion on the evolving role of the preliminary inquiry, recently expressed great frustration with this apparent turn of events:
…the preliminary hearing or preliminary inquiry has been turned into a nightmarish experience for any provincial court judge. Rules with respect to relevancy have been widened beyond recognition. Cross-examination at a preliminary inquiry now seems to have no limits. Attempts by provincial court judges to limit cross-examination have been perceived by some superior courts as a breach of the accused’s right to fundamental justice, a breach of his or her ability to be able to make full answer and defence…The present state of the preliminary inquiry is akin to a rudderless ship on choppy waters. The preliminary hearing has been turned into a free-for-all, a living hell for victims of crime and witnesses who are called to take part in this archaic ritual. (R. v. Darby,  B.C.J. No. 814 (Prov. Ct.), at paras. 9 and 10.)
Justice L’Heureux-Dubé considered the Stinchcombe requirements as an appropriate substitute for the ancillary purpose of the preliminary inquiry and concluded by suggesting that “consequently, in light of Stinchcombe and other decisions of this Court that have elaborated on those disclosure guidelines…, it may be necessary to reassess the extent to which the “discovery” rationale remains appropriate as a consideration in the conduct of the modern-day preliminary inquiry” (at para 171).
This reassessment did indeed happen and not too long after the O’Connor case. In October of 2001, the then Liberal government proposed, as part of a miscellany of criminal law amendments, significant changes to the preliminary inquiry process in the omnibus Bill C-15. The then Justice Minister Anne McLellan, in her presentation to the House upon second reading of the Bill, described the revisions as criminal procedure reform, spearheaded by the provinces, in an effort to:
simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system.
Madame Justice Deschamps considered these amendments in Regina v S.J.L.,  1 SCR 426. In her majority decision, the Court confirmed there was no constitutional right to a preliminary inquiry. According to Justice Deschamps (at para 23), the ancillary function of the preliminary as a discovery tool “has lost much of its relevance” due to enhanced disclosure requirements, which did not include requiring the Crown to produce a witness for cross examination at the preliminary inquiry. Justice Deschamps pointed to the new procedures as clearly illustrating the trend “toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures” (at para 24).
It is this last phrase – “better adapted to the needs of the parties, not the imposition of more inflexible procedures” – that requires further attention. A quick survey of the new procedures suggests the opposite: the rules have in fact created a more inflexible process, whereby the needs of the accused may not be met as they were under the less regulated system.
The primary modification made by the 2002 amendments appears to be insignificant but, in fact, serves to animate the previous criticisms of the preliminary hearing. The new Code section alters the default position for an accused facing an indictable offence, who elects to be tried by a superior court judge, from requiring a preliminary inquiry unless waived, and note the word “waive” implies a legal right, to an optional course of action initiated by the accused (or prosecutor) upon “request.” Not only must the accused or the prosecutor request a preliminary inquiry under s. 536 but the party must also comply with the various Criminal Code rules respecting the holding of a preliminary as well as any Rules of Court enacted in relation to the procedure.
One such rule, Section 536.3, requires the requesting party to provide a “statement that identifies the issues on which the requesting party wants evidence to be given at the inquiry and the witnesses that the requesting party wants to hear at the inquiry” within the time period specified by the Rules of Court or in the absence of Rules, by the justice conducting the preliminary inquiry. In Alberta, this requirement is fulfilled by submitting a written statement pursuant to procedural forms found on the provincial court website. Form A is counsel’s written “wish list” identifying the issues and the witnesses counsel “wishes” to hear from at the preliminary. A “wish” is of course not a command and the prosecutor can, pursuant to s. 540(7), file a witness statement instead of calling the witness to testify. It must be remembered that this ability was available to the prosecutor under the original format, but subject to the preliminary hearing justice, under s. 540(9), considering it “appropriate” to require the witness’s attendance to give viva voce evidence.
What is new is the advent of, what is colloquially known as, a “focus hearing” under s. 536.4. This hearing assists to further delineate the issues and to identify the required witnesses. Such a hearing may be brought upon application by the prosecutor or accused or by the preliminary hearing justice on his or her own motion. Although, at first blush, this hearing seems to merely “assist” counsel to fulfill the s. 536.3 requirements, it does much more than direct counsels’ attention to those issues. Under s. 536.4(1)(b), the focus hearing not only helps the parties to identify the witnesses required but does so in the context of the “witnesses’ needs and circumstances.” Thus, the “wish” to hear particular witnesses under s. 536.3 may be subject to an application by the other party opposing the attendance of the witness on a “needs and circumstances” basis. For example, the prosecutor may argue that a child witness, in a sexual assault case, may be compromised emotionally by testifying at the preliminary hearing and should not be required. This new “necessity” requirement seems to be a more robust test than found under s. 540(9).
Furthermore, the focus hearing under s. 536.4(1)(c) permits the court to “encourage” the defence and prosecution to “consider any other matters” to “promote a fair and expeditious inquiry.” In other words, this focus hearing acts as a pre preliminary hearing conference in an effort to streamline the process. Used correctly, this pre hearing may have the effect of encouraging resolution as evidenced by Form C, entitled Agreement And Admissions At Hearing Held Under Section 536.4 Criminal Code. On whichever basis the focus hearing is used, clearly the aperture of the focus is much wider than what is envisioned under s. 536.3.
It is, however, the inflexible application of these rules by the courts that may finally signal the end of the preliminary inquiry. In the Stinert case the Honourable Judge Rosborough, in referring to the comparable British committal hearing, suggested calls for reform were as a result of the procedure’s “lack of utility and its effect of bloating the criminal process” (at para 8). The issue in Stinert involved the quality of the Form A statement submitted by the defence. The filed statement requested the prosecution to lead “any and all evidence that the Crown intends to rely on to prove the case against the accused including but not limited to evidence of a direct or circumstantial nature, viva voce evidence of Crown witnesses and any relevant documents, electronic recordings, photographs, videos or expert reports” and listed two police officers as the desired witnesses. Judge Rosborough, in deciding that the statement did not satisfy the requirements under the section, found counsel’s statement “little more than a differently worded request for disclosure” and unacceptably consistent with the general practice in Red Deer to describe the issues in a “vague and overbroad” statement (at para 28). Such a practice, Judge Rosborough held, necessitated the court to “intervene” and take a proactive approach to the preliminary inquiry process by regulating the “form, content and practice” of the s. 536.3 statements (at para 38).
This enhanced gatekeeper role, as envisioned by Judge Rosborough, required the filing of a “proper” 536.3 statement as an aspect of the “request” to have a preliminary inquiry. If the statement was deficient, then the accused’s request was at risk. In support of this interpretation, Judge Rosborough relied upon the Ontario Court of Justice decision in Regina v Callender, 2007 ONCJ 86. In that case, Justice Bruce Duncan deemed the accused abandoned or withdrew his request to have a preliminary inquiry by virtue of his failure to appear for the hearing. Justice Duncan, exasperated by two earlier aborted attempts to hold the preliminary, denied the defence application to hold the hearing in the absence of the accused as provided for under s. 544 of the Code. Instead, Justice Duncan committed the accused for trial on the basis that the preliminary inquiry is by request only and could therefore be withdrawn. The accused, by failing to appear, effectively withdrew his request and thus left committal for trial as the only option.
In Justice Duncan’s opinion, a request was much like the accused bringing an application or launching an appeal, it is an optional hearing at the behest of the applying party and therefore no rights can flow in absence of this request. Once abandoned, the request is extinguished and the default position, committal for trial, survives. In the Callender case, committal was not an issue, the hearing was purely requested for the ancillary discovery function, which could be replaced by full Crown disclosure. Further, the prejudice to the administration of justice, by improper use of court and witness time, was significant. To permit the hearing to proceed in the accused’s absence, Justice Duncan found, would leave the “impression that the accused is a tail that is permitted to wag the dog of the criminal justice system.” (at para 12)
In the context of the specific facts in the Callender case and in light of the default committal position, Justice Duncan’s decision makes sense. However, Judge Rosborough’s reliance on this case (at para 31) as authority for finding that an “obviously deficient” s. 536.3 statement could result in an order for committal as the preliminary inquiry would be deemed withdrawn or abandoned, is reading in a far greater gatekeeper role than is suggested on even a strict reading of the circumscribed rules surrounding preliminary inquiries. Although a “request” implies the accused has the burden of bringing the matter to court, it does not follow that upon that request, if an accused does not comply with the rules to the specifications of the court, the accused is deprived of both the committal and discovery function of the preliminary hearing. Even with the requirement under s. 536.3 that the reasons for the request be articulated, the defence is not required, and should not be required, to disclose the strategy or tactical focus of the defence. To do so would be tantamount to requiring disclosure of the defence far beyond the reasonable requirement to disclose experts and alibis. To be sure, counsel has an obligation to the client to consider the case and provide a meaningful s. 536.3 statement but any deficiencies should not deprive the accused of interacting with the case he or she must meet.
Further, considering the ability of the court to hold a focus hearing under s. 536.4, there is no reason for a denial of a preliminary hearing. Even an abandoned appeal, depending on the circumstances, may be restored pursuant to Rule 14.65 of the Alberta Rules of Court and conversely an abandoned application can be reinvigorated. It should be noted that Judge Rosborough did not limit his ruling to a situation where the accused is not opposing committal. Although the ruling appears to be driven by the lack of utility of a preliminary hearing, it must be remembered that the preliminary inquiry is still a vital part of our criminal justice system as a true expression of the court’s gatekeeper function.
The Stinert decision can be viewed as both continuing judicial antipathy toward the ancillary function of the preliminary and as the flexing of the judicial gatekeeper “muscle,” which, as a result of recent Supreme Court of Canada decisions in Regina v Hart,  2 SCR 544, Regina v Mack,  3 SCR 3 and Regina v Grant, 2015 SCC 9, is now expected of trial judges making threshold rulings. In fact, it is this enhanced gatekeeper role which should be the reason to retain the preliminary hearing not only for committal issues but for evidential reasons as well. These recent Supreme Court of Canada cases imbue threshold decisions with more weight than before, placing a burden on the accused to show the evidence has an “air of reality.” The preliminary inquiry, therefore, can be an indispensable tool to establish the required evidential foundation for these threshold issues, be they issues of admissibility, providing the basis for a legal defence or setting the stage for a Charter application. Thus the notion that the preliminary inquiry lacks utility and interferes with the administration of justice fails to recognize the access to justice issues resulting from the inquiry’s demise. In order for the counsel to “appreciate the case made against” the accused, counsel has to have an opportunity to see it (see earlier quote by Mr. Justice Estey in Skogman at page 105).
The other critic of the inquiry, the government, has been unable to look past the efficiency and cost argument. Alberta, for example, has taken a strong stand for abolition of preliminary inquiries as part of the government’s response to a review of a s. 11(b) Charter stay entered in a sexual assault case. As part of the Injecting a Sense of Urgency: A New Approach to Delivering Justice in Serious and Violent Criminal Cases Reports, Alberta Justice recently issued a paper on “Eliminating Preliminary Inquiries” which justifies the government’s position for “historical” reasons. In this view, the preliminary inquiry, as a committal and disclosure forum, can be adequately substituted for by appropriate prosecutorial discretion and full disclosure.
Although superficially this argument has merit, upon closer consideration such a prospect fails to provide an important element of the preliminary, which is the oversight of a fair and impartial member of the judiciary. Such judicial oversight has become a cornerstone of our justice system as provided for in the search warrant requirements. Moreover, in the most recent decision from the Supreme Court of Canada, Regina v Nur, 2015 SCC 15, Chief Justice McLachlin cautions against substituting prosecutorial discretion for judicial decision making, particularly in the adversarial context. Without this judicial review of committal, there is no ability to challenge the decision in court through a quash committal or certiorari application. This would, in the words of the Chief Justice in Nur, “create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review” (at para 94). Finally, although Stinchcombe has set high disclosure expectations, disclosure is not a static concept but continues throughout the case. Disclosure requests are often informed by the preliminary inquiry process, which can actually result in trial efficiencies.
In fact, statistically, the preliminary inquiry works. In a timely 2013 article entitled Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations, University of Ottawa criminologist Cheryl Webster, who has done extensive research on court reform for the federal government, and retired Department of Justice counsel Howard Bebbington, found value in the preliminary inquiry process as, based on an empirical study, it did positively impact court resources. The authors recommend a more detailed review be done before changes to an old, but useful, process be made.
Clearly, the debate on the efficacy of the preliminary hearing must be re-opened before the federal government abandons the hearing without further input. The government needs to take heed to their own implementation promise that changes will not “in any way” reduce “the measure of justice” provided under the original system (see earlier quote by then Justice Minister McLellan when presenting Bill C-15 in the House of Commons). Although any such debate must recognize both sides of the issue, a more meaningful debate would include a real assessment of the advantages and disadvantages of the inquiry process. We must be open to looking at other ways to retain the safeguards presently built into the preliminary inquiry process. For instance, where committal is not in issue, we may find a useful court alternative in the civil discovery procedures, which permits a less formal and less costly forum for the questioning of parties after full disclosure of documents. With an informed and thoughtful discourse on the issue, a more flexible approach could, and should, be found to save the preliminary inquiry from a premature legislative demise.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: James Coleman & Martin Olszynski
Report Commented On: Canada’s Ecofiscal Commission, The Way Forward
Last week, a group of economists known as “Canada’s Ecofiscal Commission” issued a much-discussed report that urged Canada’s individual provinces to drive Canadian climate policy by adopting their own carbon pricing schemes. But the report barely touched on one of the key challenges for provincial or state regulation without the support of the national government: what may places that price carbon do to avoid losing industry to places that don’t?
This is an urgent question across North America because, for different reasons, Canada and the United States are unlikely to adopt uniform nationwide climate policies in the near future. In Canada, the conservative government has repeatedly delayed federal climate regulations and the leader of the liberal party has pledged to leave the provinces in charge of carbon pricing. In the United States, congressional inaction has pushed President Obama to rely on a rarely-used Clean Air Act provision that requires states to adopt their own regulations for power plant carbon emissions. Accordingly, climate regulation will be somewhat different in each state and province. But states and provinces lack a key power that national governments use when they adopt climate regulation: the power to adopt trade regulations that control imports. The nation is an economic union so provinces can’t limit trade across their borders.
Climate and trade policies often go hand-in-hand because nations that limit carbon emissions worry they will lose industry to nations that do not. After all, if emissions merely shift to other nations, a phenomenon known as “carbon leakage”, a single nation’s carbon policies won’t do much to help the global climate. One way around this problem is to charge a “carbon tariff” on imports that were produced in nations that do not have similar limits on carbon emissions. This charge is calculated by estimating how much carbon was emitted to produce the imported product and then multiplying that quantity by the importing country’s carbon price. These tariffs are sometimes called “border adjustments” because, in theory, they are supposed to level the playing field between domestically regulated producers and unregulated foreign ones.
You can’t set up a customs house between Manitoba and Ontario, so provinces can’t charge a regular carbon tariff. But states and provinces have found a roundabout way to do more-or-less the same thing. For instance, California and Quebec both have cap-and-trade systems that force power plants to purchase a permit for each ton of carbon that they emit into the atmosphere. Crucially, these cap-and-trade systems also apply to power plants in other states that export electricity to California and Quebec. The effect is the same as the customs house: when a purchaser imports electricity into California or Quebec it must pay a charge for all the carbon that was emitted elsewhere to produce that electricity.
So can states and provinces place a charge on imports that accounts for how much carbon was emitted elsewhere to produce them? It’s a crucial question because such charges could apply to all kinds of goods, not just to electricity. Provinces like British Columbia and states like California are already setting standards for motor fuels that effectively charge imported fuels for the greenhouse gases that were emitted elsewhere in their production. And in theory the same charges could apply to any kind of good. You would just add a surcharge to every item based on the greenhouse gases that were emitted elsewhere to produce it: television sets, fruit, toys, you name it.
In fact, state and provincial climate regulations across North America are increasingly adopting exactly these kind of controls, adding urgency to the underlying legal question: may energy importers export their regulation to cover emissions outside their borders? In the absence of national action on climate change, provinces are looking for creative ways to make sure that they don’t lose industry to provinces that don’t regulate, so they’re regulating imports based on carbon emissions elsewhere.
Canada’s Ecofiscal Commission is recommending provincial action on climate but it has little to say on this crucial topic, and what it says is confusing. The report’s section on “competitiveness” has a subheading titled “Border adjustments could level the playing field,” which sounds promising. It then says “border adjustments could not be implemented by a single province, but would require involvement by the federal government,” which is a major qualification. But then it states that, after all, such adjustments are possible for “specific emissions that fall under provincial jurisdiction” and cites the example of Quebec’s electricity imports. For this proposition it cites a white paper on a U.S. cap-and-trade system written by U.S. law students.
This issue is too important to gloss over. If states and provinces are going to lead the fight against climate change, many legal decisions and many academic pieces will be written on the topic before it is resolved. This post merely flags some of the key rules and arguments that will be in play.
The normal rule has been that states and provinces may not adopt regulations for pollution emitted in other states. These forbidden rules are known as “extraterritorial” regulations. In Interprovincial Co-Operatives Ltd. v. Dryden Chemicals Ltd,  1 SCR 477, the Supreme Court of Canada held that Manitoba could not make a law punishing companies that lawfully emitted pollutants in Saskatchewan and Ontario, even if those pollutants made their way into Manitoba. The rule in the United States is more complicated, but under what is known as the “dormant commerce clause”, the U.S. Supreme Court has held that states cannot adopt a law “if the practical effect of the regulation is to control conduct beyond the boundaries of the State.”
One important reason for the normal rule is that if provinces or states began banning products that were produced elsewhere in ways that they didn’t like, they would quickly run afoul of international trade laws. For example, if Ontario banned all products made by laborers that were not paid its $11 per hour minimum wage that would, as a practical matter, end imports from the developing world. It would also conflict with the General Agreements on Tariff and Trade that govern international trade.
On the other hand, the traditional rule against extraterritorial regulation is on somewhat tenuous footing. In Canada, Interprovincial Co-Operatives involved a 3-1-3 split, which makes the primary ruling open to debate. The decision is also four decades old and has been heavily criticized, including by one of Canada’s leading constitutional scholars. See Peter Hogg, Constitutional Law of Canada, 5th ed., (2007) at 13-10. Similarly, in the United States, scholars and judges have suggested that limits on extraterritorial regulation should be abandoned.
Suffice it to say that import regulations may have a better chance of being upheld where their extra-provincial effects are deemed incidental to their primary purpose, or “pith and substance” in Canadian jurisprudential terms (Reference re Upper Churchill Water Rights Reversion Act,  1 SCR 297. See also Shi-Ling Hsu and Robin Elliot, “Regulating Greenhouse Gases in Canada: Constitutional and Policy Dimensions” (2009) 54 McGill LJ 463).
And perhaps the normal rule should bend in the case of provincial climate regulation. For one thing, even if carbon emissions occur in Alberta, they still affect the global climate, which could harm Ontario, Quebec, and every other place in the world. For the same reason, it is vital that climate regulation doesn’t just shift carbon emissions to other provinces: few will want to regulate if the provinces that do lose jobs without securing any net benefit for the climate. If we want provinces to set a model for eventual national regulations, maybe they need the same trade powers.
States and provinces also have long-standing authority to manage the mix of sources providing power to their electrical grid, which includes regulating contracts for electricity imports. This helps to ensure that power will always be available at reasonable prices. But there are limits to this authority as well: a province certainly could not prescribe the wages or working conditions for employees at power plants in other provinces. Can provinces prescribe carbon standards for power plants elsewhere under their traditional authority over electricity markets? That remains an open question.
So far, the U.S. courts are divided on whether states may regulate based on carbon emissions elsewhere. An appellate court said that California could regulate fuels based on emissions elsewhere and a district court said that Minnesota could not regulate electricity based on emissions elsewhere. The Canadian courts have not yet addressed the question. And the first two Canadian cap-and-trade systems are poor test cases because both Quebec and Ontario import far less electricity than they export. But the question will become unavoidable as more provinces adopt the kind of policies recommended in the Ecofiscal Commission’s report.
Finally, these questions will grow more pressing as long as national governments delay action to address climate change. As with recent provincial efforts to improve environmental impact assessments of interprovincial pipelines, the federal policy vacuum is pushing provinces to act on their own. In the United States, one interim solution could be for the federal government to allow non-discriminatory state regulation of energy imports. If Canada’s government is serious about sticking with provincial climate policy, it may have to consider similarly creative solutions. In the meantime, these policies will continue to present difficult and novel legal questions about the boundaries of state and provincial authority.
This post originally appeared on James Coleman’s blog Energy Law Prof.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Theresa Yurkewich
PDF Version: Uber Lives to Ride Another Day
Case Commented On: Edmonton (City) v Uber Canada Inc., 2015 ABQB 214
As a result of Uber’s activation in Edmonton, the City of Edmonton brought an application for a statutory interlocutory injunction, enjoining Uber Canada Inc. (“Uber Canada”) from conducting business in Edmonton without a valid business license or taxi broker license. The City did not name Uber B.V. or Rasier Operations B.V. (collectively, “Uber Companies”), the larger corporate affiliates associated with Uber Canada, in the action. In short, the City’s application was dismissed as it failed to establish a clear and continuing breach of the relevant Bylaws by Uber Canada, and it neglected to name the right entity to be enjoined (see Edmonton (City) v Uber Canada Inc., 2015 ABQB 214). This was one of the first legal challenges to the crowd favoured App within Canada and it will likely have a wide impact on the development and approach of Uber in other municipalities.
Uber operates a software application (or “App”) based business. This App is a digital platform which enables riders to request rides, track their drivers, pay electronically and automatically, and rate their service upon conclusion. For more information on Uber and its services, see my earlier post “Uber & Calgary – A Modern Day Romeo & Juliet”.
In this case, the City of Edmonton considered Uber to be operating as a taxi broker, and thus in violation of City bylaws as it did not have a taxi or business license.
Section 7 of the Municipal Government Act, RSA 2000, c M-26 permits a municipality to pass bylaws for municipal purposes such as transport, transportation services, business, and business activities.
On the above application, there were two issues before the Court:
The City of Edmonton
The City argued that Uber Canada causes and permits the operation of vehicles for hire and acts as a dispatching taxi service, both actions requiring a license. The City argued that because Uber Canada has the power to deactivate driver accounts, it should be enjoined from conducting business in Edmonton and forced to deactivate those accounts so that drivers could not receive ride requests.
The City further argued that it was adequate to name Uber Canada as the sole party because it was a registered business within Canada, and the Uber Companies were operating through it.
Uber Canada Inc.
Uber Canada argued it does not operate a business or provide dispatch services as it does not control the activities of drivers, is not party to affiliate agreements, and does not actually pair drivers with riders. Riders request rides through the App and a driver is automatically and electronically designated. Uber Canada cannot control whether the driver chooses to provide the service.
Uber Canada argued the City was dutifully informed regarding the existence of the Uber Companies and their role in contracting and licensing with drivers. Each driver is the owner of their vehicle, not Uber Canada, nor does Uber Canada own the computer servers used to operate the App network.
In her opening analysis, Madam Justice M.G. Crighton stated (at para 23) that:
It is trite to say that individuals worldwide rely every day on the power of the Internet and the speed with which it adapts and responds to changes in its environment. It is not surprising, therefore, that legislation drafted to accommodate a more static, paper and people driven environment, sometimes lags behind the technological response to individual preferences and demands. The City’s bylaws may be no different.
The Court reviewed the evidence in regards to collecting fees, bylaw definitions, and the role of Uber Canada in the operation of the App’s network.
There was no evidence that Uber Canada receives fees in relation to rides within Edmonton. Both the request for a ride and the payment for that service occurs through a computer server which Uber Canada does not own. Uber Canada and the Uber Companies are separate legal entities, and there was no evidence that either entity controls the other.
City of Edmonton Bylaw 13138 requires a person to hold a business license if they engage in or operate a business in the City (section 4). The definition of “business” includes “an activity providing goods or services…” (section 2(a)(iii)). The Court stated that although the Bylaw does not require a business to make a profit through providing goods and services, the activities of providing support, recruitment, and advertising do not constitute carrying on business within the Bylaw’s definition (at para 27).
The Court cited Club Resorts Ltd v Van Breda, 2012 SCC 17 at para 87, in regards to internet businesses carrying on business in a jurisdiction, stating, “…Active advertising in the jurisdiction…would not suffice to establish that the defendant is carrying on business there. The notion of carrying on business in the jurisdiction requires some form of actual, not only virtual, presence in the jurisdiction” (at para 30). There was no evidence to indicate how often, or if at all, an employee from Uber Canada is present in Edmonton.
In sum, there was no evidence that Uber Canada received a fee in relation to Edmonton rides, payment occurred through a server that Uber Canada did not own, and Uber Canada merely trained drivers on how to use the App. Furthermore, there was no evidence that this training or recruitment occurred after December 2014. Therefore, the City did not meet its burden to demonstrate, prima facie, that Uber Canada was in clear and continuing breach of Bylaw 13138.
Section 4 of Bylaw 14700 states “a person shall not operate, cause or permit the operation of a Vehicle for Hire unless it is a Taxi, Limited Taxi, Accessible Taxi, Limousine or Shuttle.”
Section 67 states “a person shall not provide dispatch services to any Taxi, Limited Taxi, or Accessible Taxi unless they are a Taxi Broker.”
Although the parties did not dispute that Uber Canada did not drive or have care of the vehicles, the City argued that the definition of “cause” included “to induce”.
Uber performs marketing and promotion, App support, and recruitment. It recruits drivers and trains them to use the App. However, they do not induce or cause the downloading of the App, nor do they have care and control of the decisions of each driver. As a result, the Court found that Uber Canada is not operating or causing a driver to operate for hire (at para 37).
The Court stated that facilitating communication does not amount to “causing” the action to occur. Uber Canada does not own the servers that transmit the rider’s messages. The software is owned by the Uber Companies and Uber Canada at best facilitates its transmission through App support. Once this communication occurs, the driver still makes the ultimate decision. Therefore, Uber Canada does not dispatch or “send anyone anywhere” (at para 44).
On this basis, the City did not meet its burden to demonstrate, prima facie, that Uber Canada is in clear and continuing breach of Bylaw 14700.
The Court stated that the City “fail[ed] to fully appreciate and account for the actual role played by Uber Canada in the Uber [C]ompanies’ App-based “peer to peer” transportation service” (at para 45). Uber Canada is affiliated, but it does not contract with drivers or have control over the Uber Companies. The Court stated that the City’s approach to excluding the Uber Companies ignored the nature and scope of an internet business and the basic principles of corporate law.
In terms of bylaw enforcement, the City had made little effort to enforce its bylaws against drivers, and failed to name or give notice to the parties that own and license the App itself. The Court interpreted the action as the City asking it to take judicial notice of the fact that drivers who use the App are in contravention of the bylaws, and that through supporting and advertising the App, Uber Canada is also in contravention (at para 50). Even though the City was aware its requested relief would affect interests beyond Uber Canada, it failed to name the Uber Companies or drivers known to it.
How would this scenario play out in Calgary?
It is of note that the Calgary Livery Transport Bylaw 6M2007 uses the language “no Person shall operate a motor vehicle in a manner which suggests the Motor Vehicle is for hire…”. “Operate” is defined as “includes having care or control of a Motor Vehicle” (in section 12(jj)). This is a much narrower provision than Edmonton Bylaw 14700, and based on Uber Canada’s argument and success above, it strongly suggests that if Uber Canada was to begin operating in Calgary, it would not be acting in contravention of Bylaw 6M2007 as it does not operate the vehicles, rather, drivers do.
Similar to Bylaw 13813, Calgary’s Business License Bylaw 32M98 defines “business” as an activity providing goods or services, and “carrying on” means to operate for a fee (sections 2(f) and 2(g)). It states that “a person shall not carry on a business listed in Part II of this Bylaw unless that person has a valid and subsisting license” (section 3(1)). Again, applying Justice Crighton’s reasoning, Uber Canada would likely be successful in any challenge by the City, as it does not receive a fee and there has been no evidence that it acts as agent for the Uber Companies. As such, its activities would not meet the definition of “carrying on” a business.
The City’s application was dismissed on the basis that it failed to prove a clear and continuing breach of Bylaw 13138 or 14700 by Uber Canada. Promoting, advertising, and recruiting for use of an App do not amount to carrying on a business, especially when the corporation does not receive a fee and lacks any final control over the user.
This is an important case in that the Court mentions the fact that the Bylaws may be out of date, including those relating to the taxi industry. It is clear that the outcry for Uber is becoming louder and more prominent each day, and perhaps this is an example of the Court taking an active approach in attempting to reflect changing social values.
Although the Court dismissed the City’s application, it noted a substantial lack of evidence provided to establish the City’s arguments. It is questionable whether this evidence exists, or whether the outcome would be the same had the City been able to produce it.
For now, it seems Uber has received its first Canadian break and Edmontonians can use the App to ride another day.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Nigel Bankes
Case Commented On: SemCAMS ULC v Blaze Energy Ltd, 2015 ABQB 218
This is an important judgment on the interplay between the rules for the interpretation of contracts and the post Hryniak law on summary judgment: see Hryniak v Mauldin, 2014 SCC 7. The short version of the holding is that a producer cannot avoid summary judgment for outstanding amounts owing under a natural gas processing or related agreement on the basis that the producer has called for an audit of the operator’s accounts or otherwise disputes the amounts owing – at least where the agreements in question clearly oblige producers to settle invoices promptly, notwithstanding the existence of a dispute as to whether the invoices properly reflect the amounts owing.
Blaze was the successor in interest to a number of agreements pursuant to which SemCAMS provided gas transportation, gas processing and contract operating services. These agreements all provided, as one might expect, that producers such as Blaze would promptly settle their accounts once properly invoiced. Given the challenges involved in both assessing actual costs and allocating those costs to particular gas streams, the agreements in question provided both a means for truing up accounts (13th month adjustment) and a means for allowing producers to question the accounts by way of audit.
The action related to invoices served by SemCAMS between July 2012 and April 2013 for a total of $6.9 million; remarkably (at para 11) “Blaze has made no payments whatsoever to SemCAMS, despite the fact that SemCAMS has been processing its gas since June 2012.” Blaze had filed a counterclaim, alleging, inter alia, wrongful shutting in of its wells.
Some, but importantly not all, of the agreements expressly stated (at para 13) that the “Producer shall not be allowed to withhold payment of any portion of the bill presented by the Operator, due to a protest or question relating to such bill”; and others provided that the Operator can maintain an action for unpaid amounts “as if the obligation to pay such amount and the interest thereon were liquidated demands due and payable on the relevant date such amounts were due to be paid, without any right or resort of such Producer to set-off or counterclaim”.
The evidence before the Court on this application for summary judgment consisted of affidavits by an official of each company and the transcripts from the questioning on those affidavits. Justice Jo’Anne Strekaf summarized (at para 24) the tests for summary judgment drawing on the Court of Appeal’s decision in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 as follows:
Summary judgment is now an appropriate procedure where there is no genuine issue requiring a trial:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
The modern test for summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record.
On this record, SemCAMS sought judgment for the full invoiced amount (subject to one adjustment) on the basis that the contracts contemplated immediate recovery notwithstanding the potential for subsequent adjustments (at para 38). Blaze on the other hand argued that SemCAMS’ interpretation of the contracts led to an absurdity since it “suggests that Blaze would be obligated to pay whatever SemCAMS invoiced and that underpinning the obligation to make a payment under the Agreements is the requirement that the invoices reasonably reflect the goods or services that were provided” (at para 40).
Justice Strekaf rejected Blaze’s absurdity argument. She concluded (at para 48) that:
It can be inferred that the Operator needs to be able to rely on a reliable cash flow. If there was a dispute between the Operator and a Producer as to the amounts owing, the parties could have decided to allocate the risk so that either the disputed amount could be withheld by the Producer pending resolution of that dispute, or that it would be paid and subsequently adjusted following resolution of that dispute. The language used in this case suggests that they chose the latter approach. This arrangement is not an unreasonable allocation of risk.
In doing so Justice Strekaf immediately acknowledged (at para 49) that this was perhaps an unusual situation:
Typically in order for a party who provides services under an agreement to collect on an unpaid account that they must satisfy the Court that the amounts are ultimately owing under the agreement, not that they have simply been billed. It is unusual that a party would be able to obtain summary judgment on the basis of amounts billed, subject to subsequent adjustment following an audit. However, in this case the language used by the parties in the Agreements in the context of an Operator providing gas processing and transportation services to numerous parties supports that interpretation as reflecting the true intention of the parties.
Justice Strekaf’s judgment clearly turns on the language of the particular contracts; but, given that similar language will be used in the many different types of agreements adopted by the oil and gas industry in western Canada, the implications of this judgment are potentially very far reaching. To the extent that the judgment will make it difficult for a producer to postpone or dodge its obligations to pay, even any amount owing, simply by triggering the audit provisions of the relevant agreements, I suspect that the judgment will be broadly welcomed; and if upheld on appeal it certainly provides useful guidance as to the type of contractual language that operators need to insist upon as part of obtaining effective remedies to secure necessary cash flow in return for services provided.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Linda McKay-Panos
Case Commented On: SMS Equipment Inc v Communications, Energy and Paperworkers Union, 2015 ABQB 162
The definition of discrimination on the basis of family status has recently been extended in federal and provincial human rights law to mean not only one’s relationship to another person, but also to include recognition of childcare responsibilities. The leading case, Canada v Johnstone, 2014 FCA 111, was discussed in previous ABlawg posts (see here). The decision SMS Equipment Inc v Communications, Energy and Paperworkers Union, 2015 ABQB 162, demonstrates that Alberta labour arbitrators have joined the “family”.
SMS Equipment applied for judicial review of the arbitration award of Arbitrator Lyle Kanee. Arbitrator Kanee concluded that the employer, SMS, must accommodate Ms. Cahill-Saunders, a single mother of two children. She first worked as a labourer for SMS, and was required to work rotating seven night and seven day shifts, after moving from Newfoundland to Fort McMurray. Cahill-Saunders had one son when she was hired, and he remained in Newfoundland with his grandmother for the first nine months she worked in Fort McMurray, joining her later. At that time, the baby’s father lived in Fort McMurray and provided some childcare while Cahill-Saunders worked, although they did not cohabit (at para 5).
Cahill-Saunders gave birth to her second son (with a different father) in 2012. While she was on maternity leave, Cahill-Saunders applied for a position with SMS as a first-year apprentice welder, and she was successful, actually returning to work several months prior to the expiry of her maternity leave. The position had shifts of seven days followed by seven nights. After the first night shift tour, Cahill-Saunders requested that her shift be changed to straight days, as the older son’s father’s work schedule had changed and he was no longer providing any significant childcare; the father of her younger son had no involvement with his child, and there was no extended family in Fort McMurray (at paras 6-7).
Cahill-Saunders’ request was refused by SMS. She had explained to the human resources department that while she had childcare during her night shifts, she would have to pay for childcare in the days, too, so that she could sleep. She explained that this was too expensive. If she did not obtain childcare, she did not get sufficient sleep. The fathers were not contributing to childcare or childcare expenses (at paras 8-10).
Cahill-Saunders’ Union requested that she and another welding apprentice modify their shifts so that she worked exclusively days and the other worked exclusively nights, but SMS also denied that request (at para 11). The Union proceeded to arbitration.
The Arbitrator relied on Alberta Human Rights Tribunal decisions (Rawleigh v Canada Safeway Limited, 2009 AHRC 6; Rennie v Peaches and Cream Skin Care Limited, 2006 AHRC 13) and Johnstone (above) to conclude that family status under the Alberta Human Rights Act, RSA 2000 c A-25.5 includes childcare responsibilities. He concluded that SMS’s rule requiring welders to work night shifts had the effect of imposing a burden on Cahill-Saunders due to her childcare responsibilities that is not imposed on other welders who do not share her status. Further, SMS had tried to defend by arguing that the rule was a bona fide occupational requirement. Arbitrator Kanee held that this defence had not been made out, as SMS had not provided evidence to justify the rule requiring workers to rotate night and day shifts, or evidence that accommodating Cahill-Saunders would cause SMS undue hardship (at paras 15-16).
SMS applied for judicial review of all three aspects of the Arbitrator’s decision. The issues on judicial review may be summarized as follows (at para 18):
Madam Justice June Ross first addressed the standard of review. She concluded that the reasonableness standard of review applied to all three aspects of the Arbitrator’s decision. First, Justice Ross concluded that the Arbitrator’s inclusion of childcare responsibilities as part of family status clearly fell within a range of possible, acceptable outcomes defensible in facts and law (at para 50). Second, it was reasonable that the Arbitrator had indicated that there is a range in the case law of the tests required to establish a prima facie case of discrimination (see Hoyt v Canadian National Railway, 2006 CHRT 33 and Health Sciences Association of British Columbia v Campbell River and North Island Transition Society, 2004 BCCA 260). The Arbitrator concluded that, regardless of which test was used, discrimination was made out. The Arbitrator’s assessment of Cahill-Saunders’ self-accommodation efforts was reasonable, as SMS had not provided any self-accommodation case that held that a single parent must seek government benefits or commence legal proceedings against the biological parents of her children before seeking a workplace accommodation (at para 67).
In case Justice Ross was incorrect in her assessment of the reasonableness standard for the first two issues, she performed a correctness analysis and determined that she would have arrived at the same conclusion as the Arbitrator (at para 69).
There was no dispute as to the use of the reasonableness standard for the third issue. The Arbitrator applied the three-part test from British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3 (“Meiorin”, at para 54):
An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
Justice Ross held that the Arbitrator had reasonably concluded that the extent of Cahill-Saunders’ self-accommodation efforts might have been found insufficient if SMS had provided some evidence in support of its rule or some evidence of undue hardship. In addition, Cahill-Saunders had provided evidence that she had found another employee who was prepared to work nights exclusively and that other employees had been permitted to work nights exclusively. SMS had provided no reasons for rejecting her request for accommodation. Thus, the Arbitrator’s decision on this (and all three issues) was reasonable (at paras 92-93).
A few features of this case merit comment. First, some who read the facts may have wondered why Cahill-Saunders accepted a job that required night shift work when she knew or should have known it would probably require accommodation. This may be easily answered: SMS never provided any evidence as to why it used rotating shifts or why it would be an undue hardship to accommodate Cahill-Saunders. Further, the job involved work (welding) for which she was trained. Perhaps when she applied for the job she thought she could manage or that the fathers would be involved more in the care of her children. Once she encountered a difficulty, she attempted to assist in her accommodation by working out a shift trade with a co-worker.
Moreover, during the arbitration, Cahill-Saunders provided expert evidence about the circumstances of working women with children. In Communications, Energy, and Paperworkers Union, Local 707 v SMS Equipment Inc, 2013 CanLII 71716 (AB GAA), the Arbitrator referred to an expert opinion of Karen D. Hughes, PhD, to the effect that (at para 27):
These conclusions provide ample support for the broader recognition of childcare responsibilities as part of “family status”.
Finally, it is interesting that SMS suggested that the Arbitrator should have been influenced by the fact that Cahill-Saunders did not ask the boys’ fathers to assist with childcare, either financially or otherwise, or that she did not apply for child support or childcare subsidies. However, the Arbitrator noted that even if she had tried to obtain some financial support for the boys, she would still have been required to spend additional monies for childcare and this would not prevent the adverse effect of SMS’ rule. SMS’s argument actually helps make Cahill-Saunders’ case as it demonstrates that she had extraordinary childcare responsibilities together with a significant legal obligation to support her family.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Nigel Bankes
PDF Version: Crown Oil Sands Dispositions and the Duty to Consult
Case Commented On: Buffalo River Dene Nation v Ministry of Energy and Resources and Scott Land and Lease Ltd, 2015 SKCA 31
The Saskatchewan Court of Appeal has confirmed Justice Currie’s decision (discussed here) to the effect that the grant of an oil sands exploration permit in Saskatchewan does not trigger the Crown’s duty to consult principally on the grounds that that there is no potential for conflict between the rights conferred by the permit and the First Nation’s treaty rights. This is because the permit alone gives the permittee no right to use the surface while the First Nation (at para 88) “does not advance here a treaty right or Aboriginal claim to subsurface rights or rights exercisable in relation to the subsurface of Treaty 10 lands.” Furthermore, at the time that the permit is granted there is no project on which to consult about; this will only become apparent when the permittee (if ever) develops a plan for its proposed exploration or development of the underlying minerals which requires surface access – at which time consultation will occur. And (at para 92) “It is at this point that the Crown and Buffalo River DN would have something meaningful, in the sense of quantifiable, to consult about, to reconcile.” Until then there is no project.
In this picture the Crown is an empty vessel patiently waiting on industry (and world oil prices). That is a large part of the picture but I’m not sure that it is the whole picture as discussed in my earlier post on the trial decision. The Crown has a project of its own. The reality is that the Crown has made a decision or a series of decisions. It has made the decision that the lands in question are potentially open to oil sands exploration; and most important of all the Crown has made the decision that other values including environmental values (see para 9(a)) are not sufficiently important to deny industry’s request to have the lands posted.
The 65 page judgement contains a useful review of the leading consultation decisions from across the country. It also contains an intriguing discussion about the relative merits of consulting on every permit issuance versus consulting on the bigger picture and (at para 85) the “broader effects of Crown conduct”. Thus the judgement notes (id), referring to Dwight Newman, Revisiting the Duty to Consult Aboriginal Peoples, 2014, that consultation on every permit would be “death by a thousand cuts” in which Aboriginal groups might not appreciate the significance of each permit; better perhaps therefore to structure consultation around the Crown’s overall strategy for oil sands development in this part of the province. There is no doubt much to be said for this sort of dialogue. A dialogue that considers competing visions for the use of traditional territory; a dialogue that takes cumulative impacts seriously; and a dialogue that perhaps seeks to address which lands should be open to oil sands exploration and which withdrawn. But having raised this issue Justice Caldwell backs away from its implications implicitly, preferring to emphasize (at para 87) that consultation is better left to the “well-defined and linear regulatory process” that will kick in if and when there is a more concrete development proposal rather than the Crown’s broader strategic decisions.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Nigel Bankes
PDF Version: The Bilcon Award
Award Commented On: The Claytons and Bilcon v Canada, NAFTA, UNCITRAL Rules, 17 March 2015
Once again Canada has lost an important investor/state arbitration under Chapter 11 of NAFTA (for a post on Canada’s last reversal (Mobil and Murphy), also characterized by a strong dissent, see Regulatory Concussion). The Clayton family and Bilcon Inc (US investors, the claimants) were hoping to develop a quarry in Digby Neck, Nova Scotia. The project was sent to a joint federal/provincial environmental review panel (JRP) by both levels of government. The JRP recommended rejection and both governments accepted that recommendation, and thus the project died. The claimants took the view that the JRP process was badly flawed. They were of the opinion that the panel had recommended rejection on the basis that the project would be inconsistent with “community core values” and furthermore that the panel had deliberately failed to identify any mitigation measures that might make the project acceptable. However, instead of seeking judicial review of the JRP in the Federal Court the claimants commenced this NAFTA arbitration. They have been rewarded with a majority decision in their favour. The majority (Judge Bruno Simma and Professor Bryan Schwartz) found that Canada had breached both Article 1105 (minimum standard of treatment (MST) – even as constrained by the Interpretation Note (2001) issued by NAFTA contracting parties here) and Article 1102 (national treatment standard). The matter will now go back to the tribunal for it to assess damages. Professor Donald McRae delivered a strong dissent contending that the majority had turned what was nothing more than a possible breach of domestic law into an international wrong. I have nothing to add to McRae’s excellent critique (and see also Meinhard Doelle’s post on the decision); my purpose here is to review some of the implications of the Award from a number of different perspectives.
This award sends the following message to a project proponent who is a foreign investor and who is disappointed by an adverse regulatory decision which is arguably in breach of domestic law: don’t bother suing or seeking judicial review in the domestic courts – go straight to arbitration. Consider the advantages. Get yourself a couple of experts to opine that the decision maker acted contrary to domestic law and present a MST claim to a NAFTA panel. There is no need to mess with difficult and bothersome questions of standard of review and deference to administrative decision makers in the Federal Court. And you can get yourself damages for any losses that you might have suffered without having to establish malicious intent on the part of the administrative decision-maker.
But if you’re an ENGO (environmental non-governmental organization) that believes that the JRP or other administrative decision maker erred in law by, for example, failing to take seriously project impacts on species at risk, or perhaps arbitrarily excluding upstream environmental impacts – then too bad. There is no international forum within which to litigate a minimum standard of treatment for the environment. You will be stuck with domestic law and the Federal Court and you will have to deal with standard of review questions and the likely inevitability of reasonableness as that standard. No choice of forum for you.
Beware the rogue panel! Be extra careful and conservative in selecting panel members. Take no risks. And if by chance, and notwithstanding all the care that you have taken, the JRP misspeaks itself or uses non-sanctioned language to characterize its decision, then take care to send the matter back to the Panel to have it couch its decision in more familiar terms.
Legal Advisor to a Panel
Take a course in international investment law to complement what you already know about administrative law and environmental law and about proofing the panel’s decision from judicial review.
With implications such as these it is hardly surprising that bilateral and multilateral investment treaties (BITs and MITs) and their arbitral panels (which are difficult to bring to heel outside the International Centre for the Settlement of Investment Disputes (ICSID) annulment procedure which would not be available in this case, see here) get such a bad press.
I will leave the last words to Professor McRae (dissent at paras 50 – 51):
In effect, what occurred in this case was that an environmental review panel concluded that the socio-economic effects of a project were sufficiently negative that notwithstanding the existence of some positive benefits of the project, it should recommend against the project. In doing so, the Panel used terminology with which the Claimant argued it was not familiar to describe established and well-understood socioeconomic and environmental effects. The Panel also decided not to recommend mitigation measures, because it believed that the overall effect of the project could not be mitigated. On that basis, the majority has concluded that Canada is liable in damages under NAFTA.
This result may be disturbing to many. In this day and age, the idea of an environmental review panel putting more weight on the human environment and on community values than on scientific and technical feasibility, and concluding that these community values were not outweighed by what the panel regarded as modest economic benefits over 50 years, does not appear at all unusual. Neither such a result nor the process by which it was reached in this case could ever be said to “offend judicial propriety”. Once again, a chill will be imposed on environmental review panels which will be concerned not to give too much weight to socio-economic considerations or other considerations of the human environment in case the result is a claim for damages under NAFTA Chapter 11. In this respect, the decision of the majority will be seen as a remarkable step backwards in environmental protection.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: James Coleman
Corporations regularly complain that new regulations will harm their business and the broader economy. How seriously should we take those warnings? I’ve just posted a paper that presents a way of answering this perennial question.
It’s often said that corporations, “Cry Wolf,” falsely predicting that rules will be very costly. A prime example comes from 1970 when Ford’s President, Lee Iacocca warned that the U.S. Clean Air Act “could prevent continued production of automobiles” and was “a threat to the entire American economy and to every person in America.” So when industry says that new regulations such as the U.S. Environmental Protection Agency (EPA) Clean Power Plan or Alberta’s rules for cleaning up tailings ponds will be unworkable, some suggest that regulators should just ignore those warnings.
But the problem with crying wolf is that there are wolves. That is, false alarms are dangerous because they mean we won’t respond to true threats. And from time to time, regulations really are unworkable, and industry might be the first to recognize this, which is why regulators don’t just ignore industry warnings.
So regulators face a dilemma: they need industry to tell them whether a rule is workable, but they suspect industry will exaggerate the cost of regulation. How can regulators tell how much companies really expect rules to cost?
My paper, titled “How Cheap is Corporate Talk?” compares companies’ comments on proposed rules with what the same companies told their investors about the same proposals. After all, companies have no reason to trick their investors into thinking that a rule might harm the company. In fact, they may want to reassure investors by minimizing the danger from proposed rules. So if regulators want to know how much a company worries about a proposed rule, they should compare the company’s comments on the rule with what it told its investors.
Take Lee Iacocca’s famous warning that the Clean Air Act could “prevent continued production” of cars in America. In its annual report for that year, 1970, Ford told its investors that “the automobile industry has survived and grown even in countries where government policies have made the cost of car ownership several times higher than it is in the United States” and assured them it had “no doubt that our industry will continue to grow.” Who signed that prediction on behalf of Ford’s board of directors? Henry Ford II and . . . Lee Iacocca.
This paper focuses on a contemporary example of the regulator’s dilemma: the EPA’s Renewable Fuel Standard. The Standard requires oil companies to blend ethanol into the fuel they sell, and it requires more ethanol each year. EPA proposes and sets a required percentage of ethanol annually, which gives oil companies plenty of opportunities to comment. The paper matches those comments up with contemporary Form 10-K securities disclosures from the same companies.
The study finds that oil companies made significantly more predictions about how the Renewable Fuel Standard would harm them in comments than they disclosed in their 10-K statements. For example, one oil company told the EPA that if the rules weren’t changed, they would “limit the supply of gasoline and diesel fuel” and cause “severe economic harm.” In its 10-K statement, the only thing its parent company told its investors was that rules like the Renewable Fuel Standard were creating a strong market for biofuels. And it even implied that that was a good thing because of its side business as a biofuel producer.
Regulators should ask public companies to attach relevant excerpts from their securities disclosures to their comments on proposed rules. This would help regulators assess when a proposed rule might present a true threat to an industry or the economy. In the meantime, securities regulators should scrutinize company comments to find regulatory risks that companies may be concealing in their disclosures to investors. By comparing what companies tell their regulators with what they tell their investors, we’ll all know whether to come running when a corporation cries, “Wolf!”
This post originally appeared on James Coleman’s blog Energy Law Prof.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Joshua-Sealy Harrington
PDF Version: Can the Homeless Find Shelter in the Courts?
Case Commented On: Tanudjaja v Canada (Attorney General), 2014 ONCA 852
Late in 2014, the Ontario Court of Appeal considered a Charter challenge to provincial and federal (in)activity allegedly contributing to homelessness and inadequate housing (Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (“Tanudjaja CA”)). The appellants sought to overturn a motion judge’s decision striking their application at the pleadings stage (Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (“Tanudjaja SC”)). A majority of the Court of Appeal (the “Majority”) upheld the motion judge, while the dissenting judgment (the “Dissent”) would have overturned the motion judge and allowed the Charter challenge to proceed to trial. This comment analyzes both judgments and concludes that the Dissent provides a more compelling analysis of the governing legal principles and their application in this case.
Two legal issues are discussed in Tanudjaja CA, namely, whether the motion judge correctly dismissed the application because:
I discuss each of these issues in turn and conclude that the Dissent is preferable on all accounts.
1. The Application is Justiciable
The Majority and Dissent both agree that, in essence, an issue is justiciable if the courts are competent to address it (Majority at para 35; Dissent at para 80). Accordingly, the justiciability inquiry in Tanudjaja CA was whether the courts are competent to adjudicate the appellants’ Charter application relating to homelessness and inadequate housing.
In my view, the Majority’s two main arguments – that such Charter applications cannot be adjudicated because they are too political or too vague – can be refuted.
a. The Application is not Too Political
The Majority claims that the application is not justiciable because it boils down to Canada and Ontario giving “insufficient priority” to issues of homelessness and inadequate housing – a political matter best left to the legislature (Majority, at paras 19-22). This analysis is flawed because it (1) mischaracterizes the application and (2) disregards how the competence of the courts often intersects with political issues.
First, the Majority mischaracterizes the application. Specifically, the Majority conflates assigning the level of priority given to homelessness and inadequate housing (a political inquiry for the legislature) and adjudicating whether or not that level of priority falls below the level demanded by the Charter (a legal inquiry for the courts). I fully agree that the strategic considerations weighing on a legislature in its fight against poverty, and the specific approach it adopts in that fight, would be inappropriate for the courts to assign. But the applicants in Tanudjaja were not seeking a court-imposed legislative framework governing poverty-reduction. Rather, they were seeking declarations and orders implementing “effective” poverty-reduction programs (see Majority, at para 15) – presumably, because the applicants considered effective programs to be the threshold demanded by the Charter.
Admittedly, the applicants sought extensive remedies, some of which would have partially constrained legislative autonomy. In particular, one of the orders sought by the applicants required that the new legislation be “developed and implemented in consultation with affected groups” and include “timetables”, “monitoring regimes”, and “complaints mechanisms” (Majority, at para 15). But one of several remedies sought by the applicants being arguably overreaching should not render their claim non-justiciable. Moreover, the thought of a poverty-reduction strategy that ignores affected groups and that lacks timetables, monitoring, and complaints mechanisms appears destined to be ineffective. While imposing such requirements on the legislature may seem overreaching, that view raises the question as to what a Charter-compliant regime, without such basic requirements, would even look like.
In addition to mischaracterizing the application, the Majority disregards how courts often appropriately adjudicate issues with political dimensions. On this point, the Dissent cites Dean Lorne Sossin who aptly observes that courts may equally be accused of improperly deciding on “political” or “policy” matters when analyzing section 1 of the Charter (Dissent, at para 78) – an exercise indisputably within their competence. Indeed, through the enactment of the Charter, the court is duly empowered to rule on legal issues with undeniable political dimensions. For example, consider the Supreme Court’s ruling in Carter v Canada (Attorney General), 2015 SCC 5. In Carter, the Court concludes, without any concern about justiciability, that the ban on physician assisted death breaches the Charter “to the extent that” it applies to a specific court-imposed group of individuals: competent adults who clearly consent and have a grievous and irremediable medical condition that causes enduring and intolerable suffering (at para 147). And yet, delineating such a specific group of individuals is steeped in the “moral, strategic, ideological, historical, [and] policy considerations” the Majority considers beyond the scope of competent adjudication in Tanudjaja CA (at para 21).
Similarly, the application in Tanudjaja, despite its political implications, addressed a legal question within the competence of the courts, namely, whether Canada and Ontario’s approach to poverty-reduction complies with sections 7 and 15 of the Charter. Courts should not consider questions with political dimensions non-justiciable. Indeed, in Reference Re Canada Assistance Plan,  2 SCR 525 (“CAP”) the Supreme Court distinguished questions that are “purely political” from questions with a “sufficient legal component” (at 545; emphasis added). In other words, a legal issue must, arguably, be exclusively political to be non-justiciable. Otherwise, while the question may have numerous political implications (like physician assisted death from Carter), it nonetheless has a legal component appropriate to the jurisdiction of the court.
To be fair, there is some grey area between a question that is “purely political” (i.e. 100% political/0% legal) and a question that has a “sufficient legal component” (90% political/10% legal?). The Supreme Court’s use of the word “sufficient” in CAP connotes an obscure threshold of legality that must be reached to satisfy justiciability, and that threshold remains undefined in the jurisprudence (see e.g. Reference Re Secession of Quebec,  2 SCR 217 at paras 26-28 and Reference Re Same-Sex Marriage, 2004 SCC 79 at paras 8-11).
In any event, the application in Tanudjaja – a Charter complaint on behalf of “a large, marginalized, vulnerable and disadvantaged group who face profound barriers to access to justice” (Dissent, at para 88) – had, in my view, a sufficient legal component. I am sympathetic to the concern that applicants may attempt to reroute purely political questions through the courts with creative phrasing that superficially engages the Charter. But the application in Tanudjaja is far from superficial. Substantive equality is the “animating norm” of section 15 of the Charter (Withler v Canada (Attorney General), 2011 SCC 12 at para 2) and that norm will remain “meaningless for a vast number of Canadians” without greater attention to the experience of the poor (Martha Jackman, “Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination under the Canadian Charter and Human Rights Law” (1994) 2:1 Rev Const Stud 76 at 78). Further, section 7 of the Charter addresses, in part, autonomy and quality of life (see Carter at para 62) – two things the homeless notoriously struggle to achieve. While section 7 is typically construed as providing for negative rights (i.e. a right to not have autonomy interfered with by government actions), the Court left open the possibility of section 7 providing positive economic rights (i.e. a duty on the government to provide a minimum standard of living) in Gosselin v Québec (Attorney General), 2002 SCC 84. Accordingly, the application in Tanudjaja is not an illegitimate case abusing the broad strokes of the Charter. Rather, Tanudjaja is a critical opportunity to explore economic rights under the Charter on behalf of some of the most economically disenfranchised individuals in Canadian society.
b. The Application is not too Vague
The other main argument advanced by the Majority regarding justiciability is that the application is too vague. Specifically, the Majority argues that the broad application – which impugns the “decisions, programs, actions and failures to act” by Canada and Ontario – is too general, and accordingly, lacks a “sufficient legal component” for competent adjudication by the court (at para 27). This argument, too, is flawed.
First, the Majority later concedes that “constitutional violations caused by a network of government programs” should remain open to judicial scrutiny, “particularly when the issues may otherwise be evasive of review” (at para 29). But homelessness and inadequate housing are precisely such issues. In particular, homelessness and inadequate housing are influenced by a complex web of state activity. Indeed, the Majority recognizes that housing policy is “enormously complex […] influenced by matters as diverse as zoning bylaws, interest rates, procedures governing landlord and tenant matters, income tax treatment of rental housing” etc (Majority, at para 34). That complexity leaves the government’s approach evasive of review, and according to the Majority’s own logic, such an approach should not be immune from review simply because that review fails to impugn a specific law.
Second, if we assume, for the purposes of the justiciability analysis, that the Charter imposes positive obligations on the state, then it is not technically necessary for the application to identify specific laws for review. Depending on how positive rights evolve in the courts, assessing whether a Charter-imposed minimum standard of living was satisfied may depend on deficient economic outcomes (i.e. the minimum standard not being met) rather than deficient laws (i.e. the government’s inadequate approach to meeting that minimum standard). Accordingly, specific laws need not always be impugned in an application to substantiate a breach of the government’s positive obligations under the Charter, and in turn, the failure to identify specific laws should arguably not be fatal to such a Charter application. Admittedly, such a broad view of positive obligations under the Charter has yet to be affirmed by the Supreme Court. In particular, the Court has only gone so far as to require that benefit programs which the government elects to provide must provide such benefits in a manner that complies with the Charter (see e.g. Eldridge v British Columbia (Attorney General),  3 SCR 624 at paras 72-73). But arguments about how the Court is unlikely to affirm such a broad conception of the Charter belong under the analysis of whether the application discloses a reasonable cause of action, not whether the application was justiciable.
The Majority also argues that the vagueness of the complaint makes established Charter principles too awkward to apply and potential remedies too difficult to determine. In particular, the Majority argues that, without a specific impugned law, the analysis under section 1 of the Charter, which is predicated on the law’s purpose and means, is impossible to conduct (at paras 27-28 and 32).
However, the Dissent refutes this position satisfactorily. In particular, the Dissent makes two arguments in response to the Majority’s view that the application is non-justiciable because it is too vague, namely, that:
In sum, the application is neither too political, nor too vague, to be justiciable. Rather, the application is sufficiently rooted in legal principles to fall within the competence of the courts and should not have been struck at the pleadings stage merely because of potential difficulties when applying those legal principles to the application.
I note, parenthetically, that some of the Majority’s observations regarding justiciability are more suited to the analysis of whether or not the application discloses a reasonable cause of action. For example, the Majority, in the course of its justiciability analysis, describes section 7 conferring a positive right to housing as a “doubtful proposition” in light of prior decisions denying such positive rights (at para 30). But justiciability relates to whether or not the court is competent to adjudicate the claim, not whether the court is likely to grant the claim. Instead, such observations should have been dealt with under the second issue: whether the application discloses a reasonable cause of action, which I turn to next.
2. The Application Discloses a Reasonable Cause of Action
The Majority does not discuss whether the application discloses a reasonable cause of action because it dismissed the appeal on the basis of justiciability (at para 37). However, having addressed the flaws in the Majority’s justiciability analysis, I will now reinforce the arguments raised by the Dissent regarding how the application discloses a reasonable cause of action (contra Gerard Kennedy, “The Right Result for the Wrong Reason: The Court of Appeal’s Decision in Tanudjaja”).
The Dissent begins its analysis on this point by outlining the legal test regarding striking an application for lacking a reasonable cause of action. Specifically, the Dissent provides that an application should only be struck for lacking a reasonable cause of action if one of various synonymous conditions is satisfied, namely:
(Dissent, at paras 45-46).
Of particular importance to this application, the Dissent notes that “novelty alone is not a reason to strike a claim” and similarly, that a motion to strike should not be used “as a tool to frustrate potential developments in the law” (Dissent, at para 47). As McLachlin CJ aptly observes in R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 21:
Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. […] The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions […] Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.
With that in mind, the applicants’ claims under sections 7 and 15 of the Charter are not certain to fail, and accordingly, should not have been struck.
a. The Section 7 Claim is not Certain to Fail
The motion judge dismissed the applicants’ section 7 claim, in essence, because section 7 has not yet been interpreted to impose a positive obligation on the state to provide life, liberty, and security of the person (Tanudjaja SC, at para 31). This is a flawed basis on which to dismiss the application because whether section 7 provides for positive rights is a legitimate and arguable claim worthy of the court’s attention.
First, the text of section 7, on a plain reading, provides for a positive right to life, liberty and security of the person. Specifically, section 7 reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (emphasis added).
The phrasing of section 7 is conjunctive, and arguably provides for two rights:
In contrast, section 9 of the Charter only provides for a negative right, which limits the state’s actions against citizens without imposing positive obligations on the state: “[e]veryone has the right not to be arbitrarily detained or imprisoned (emphasis added).
To be clear, my point is not that the Charter must be interpreted literally as providing for a right to eternal life (which would be absurd) or that statutory interpretation of the Charter is limited to textual analysis (which belies the established purposive approach to Charter interpretation). Rather, my point is that there is a weak textual basis for interpreting section 7 of the Charter as without positive obligations when such obligations are entirely consistent with the phrasing of the provision (see generally Gosselin, at paras 319-28 per Arbour J, dissenting).
Second, the Supreme Court expressly left open the possibility of positive section 7 rights in Gosselin at paras 82-83, per McLachlin CJ for the majority:
One day s. 7 may be interpreted to include positive obligations […] It would be a mistake to regard s. 7 as frozen, or its content as having been exhaustively defined in previous cases […] The question therefore is not whether s. 7 has ever been – or will ever be – recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards […] I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances.
Indeed, the Majority and Dissent in Tanudjaja CA both agree that the Supreme Court has not precluded the possibility of positive obligations under section 7 of the Charter (Majority, at para 37; Dissent, at para 81).
Accordingly, striking a claim simply because it relies on positive Charter obligations is inappropriate. In particular, striking the application at the pleadings stage, before the record could be reviewed to determine whether homelessness qualifies as one of the “special circumstances” that warrant positive intervention, was premature (Dissent, at paras 64-66). Indeed, if there was ever a suitable case for imposing positive Charter obligations on the state – an admittedly onerous obligation – the basic necessity of adequate housing would be it.
b. The Section 15 Claim is not Certain to Fail
In a previous ABlawg post, I outlined the errors made by the motion judge when he concluded that homelessness is not an analogous ground of discrimination under section 15 of the Charter (see Joshua Sealy-Harrington, “Should Homelessness be an Analogous Ground? Clarifying the Multi-Variable Approach to Section 15 of the Charter”). In sum, the motion judge’s analysis of analogous grounds was flawed because it:
In addition to those errors, I echo the observations of the Dissent regarding the motion judge’s erroneous dismissal of the applicants’ section 15 claim. Specifically, I echo the Dissent’s concerns about the motion judge ruling that homelessness and inadequate housing are not “caused” by state activity without a review of the record put to the court (Dissent, at paras 70-72). At the furthest extreme, governments have been known to participate in intentional discriminatory housing practices (see e.g. Ta-Nehisi Coates, “The Racist Housing Policies That Built Ferguson”). To be clear, my point is not that the current plight of the Canadian homeless has the same causal relationship to state activity as the struggle by Black Americans against segregation, or even that the Canadian government has deliberately sought to discriminate against the homeless in its housing policies (not that such intent is required for a violation of section 15: see Andrews v Law Society of British Columbia,  1 SCR 143 at 174-75). But we cannot claim to understand the struggles of the homeless, or the state’s role in contributing to that struggle, without a review of the evidence. Indeed, to reach preliminary conclusions about the causes of homelessness without reviewing evidence is likely to rely on the prejudicial reasoning section 15 is specifically meant to counteract (i.e. that the homeless are the authors of their own misfortune).
The application in Tanudjaja should have proceeded to trial for a decision following a full review of the record; not because it would have clearly succeeded, but because it would not have been “certain to fail.”
Admittedly, a finding of positive rights under the Charter would be a marked departure from the Supreme Court’s prior jurisprudence and would have wide-ranging implications for government activity. But, as the Dissent concedes, the Supreme Court left the door to such positive rights “slightly ajar” (at para 37). Further, inadequate housing is an ideal candidate for such positive rights. Positive obligations, which are onerous to demand from the state, should be limited to the basic necessities of life – necessities without which life, liberty and security of the person cannot be achieved. Adequate housing is fairly characterized as such a necessity. Accordingly, if there was ever a case to test the limits of positive Charter rights, this was it.
The appellants have sought leave to appeal at the Supreme Court of Canada. Given the devastating impact of homelessness throughout Canada, we can only hope that the Supreme Court will decide to hear the appeal, overturn the motion judge’s decision, and give those without inadequate housing their day in court.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Martin Olszynski
Legislation commented on: Bill C-46: An Act to Amend the National Energy Board Act and the Canada Oil and Gas Operations Act
Yesterday, I had the opportunity to appear before the House of Commons Standing Committee on Natural Resources in the context of its study of Bill C-46, referred to as the Pipeline Safety Act, which amends the National Energy Board Act, RSC 1985 c N-7 and the Canada Oil and Gas Operations Act, RSC 1985 c 0-7. Below are my speaking notes in slightly modified form. Interested readers are also referred to the Library of Parliament’s Legislative Summary of Bill C-46; you will also find commentary on the Bill here and here.
Thank you Mr. Chair and members of the Committee. The focus of my presentation today is on what are commonly referred to as the “environmental damages” provisions of Bill C-46. My comments are divided into three parts. I will begin with a brief primer with respect to environmental damages: what they are and how they are assessed. I will then describe their role and treatment under Bill C-46. Finally, I make two recommendations for improvement.
I. A PRIMER ON ENVIRONMENTAL DAMAGES AND THEIR ASSESSMENT
Most simply, “environmental damages” can be understood as the financial compensation awarded for the loss or impairment of some public environmental asset and the services that it provides, e.g. a tract of forest (as in the Supreme Court of Canada’s decision in Canadian Forest Products v. British Columbia,  2 SCR 74, which opened the door for governments to sue for such damages) or a coastal area (such as Prince William Sound following the Exxon Valdez oil spill, or the Gulf of Mexico following the Deepwater Horizon blowout).
Environmental and resource economists divide such harms into the loss of two kinds of values: “use value” and “non-use value.” Referring to an Environment Canada (EC) publication, the Library of Parliament’s Legislative Summary of Bill C-46 defines these as follows (p 23, footnote 17):
Use values are associated with direct use of the environment such as fishing and swimming in a lake, hiking in a forest – or commercial uses such as logging or farming. Non-use values are related to the knowledge of the continued existence of the environment…or the need to leave environmental resources to future generations.
As Committee members might imagine, environmental damages assessment (EDA) can be a complex and difficult task. Various scientific disciplines (e.g. ecology, toxicology, hydrology) are applied to first determine the extent of harm done, while economics, and the techniques of environmental valuation in particular, are then used to convert this harm into monetary terms.
II. ENVIRONMENTAL DAMAGES UNDER BILL C-46
There are actually two different roles for environmental damages within Bill C-46: they play a role in sentencing and in civil liability. As to sentencing, where an operator commits an offence under the NEB Act, the new section 132 (clause 37, pp 35-36) directs a sentencing judge to consider the “damage or risk of damage to the environment,” which subsection 132(4) defines as including “the loss of use value and non-use value.” Through this amendment, the NEB Act joins the ranks of ten other federal environmental laws with similar sentencing provisions. Although light on details, this wording has the benefit of being both simple and comprehensive.
The other environmental damages provisions, which are decidedly more opaque, are found in the context of civil liability. New subsection 48.12(1) (clause 16, pp 6 – 7) refers to three heads of damages for spills:
(a) all actual loss or damage incurred by any person as a result of [a spill] …
(b) the costs and expenses incurred [for clean up];
(c) all loss of non-use value relating to a public resource that is affected by the release…
In other words, “environmental damages” are not actually referred to in this part of the Bill. Rather, their availability – at least partially – is implied by the reference in subpara (c) to “all loss of non-use values relating to a public resource.” Use values are not explicitly referred to, although as I will explain some of these could be caught by subpara (a). Two other relevant provisions are subs 48.12(9) and subs 48.13(5). The former states that only federal and provincial governments may sue for the loss of non-use values. The latter states that the NEB is not required to consider the potential loss of non-use values when determining the financial resources operators will be required to maintain for the purposes of absolute liability.
My first recommendation is that the third category of loss under civil liability be amended to refer simply to “environmental damages” (e.g. “all environmental damages resulting from the release…”), coupled with an additional subsection defining “environmental damages” as defined in the sentencing provisions. This would not only simplify this section and ensure its comprehensiveness, it is also necessary to correct what appears to be an error in the current Bill.
As the Committee is probably aware, the wording for this provision was borrowed almost verbatim from Bill C-22 (the Energy Safety and Security Act (ESSA)), which amended the Canada Oil and Gas Operations Act along similar lines. That legislation, however, already had some spill-related provisions, and a definition of “actual loss or damage” in particular: “includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, includes loss of hunting, fishing and gathering opportunities” (subsection 24(3)). On my reading of Bill C-46 this definition, which admittedly would capture some use values, has not been brought over to the NEB Act. Even if this definition were to be brought over, however, I submit that there would still be a significant gap. I can provide some examples after my presentation if the Committee is interested.
My second recommendation is that the Governor in Council should be required within a certain time frame – or at least authorized – to make regulations setting out a process for EDA. Further, reliance on this process should result in a rebuttable presumption of validity in any action for such damages, whether in court or before the Pipelines Claim Tribunal (established in another part of the Bill). My reasons for this recommendation are as follows.
First, and as noted above, EDA is a difficult and complex exercise; regulations would bring certainty to all parties and reduce needless litigation costs around the assessment and quantification of environmental harm. It is for these very reasons that the equivalent American legislation, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act, contain such provisions and that processes have been prescribed for what is there referred to as Natural Resources Damages Assessment (NRDA). Simply put, such regulations represent the “gold standard” in this context.
My second reason tracks the preventative spirit of the Bill. As I noted previously, there are now ten federal laws with some kind of environmental damages provisions, and it has been ten years since governments can sue for such damages at common law. And yet, I am not aware of a single case where the federal Crown has actually sought to do so. Perhaps some future government witnesses could shed light on this state of affairs. Whatever the case, this reality greatly undermines the deterrent effect that statutory liability regimes like that found in Bill C-46 are intended to create. The making of regulations, which ideally would be made applicable to all federal EDA regimes, should go some way in remedying this.
Thank you for your time.
By: Nigel Bankes
PDF Version: An Update on the Northern Gateway Litigation
Cases Commented On: Forest Ethics Advocacy Association v Northern Gateway Pipelines Inc, 2015 FCA 26; Gitxaala Nation v Northern Gateway Pipelines Inc, 2015 FCA 27; Gitxaala Nation v Northern Gateway Pipelines Inc, 2015 FCA 73
This post provides an update on the various challenges that have been mounted to Enbridge’s Northern Gateway Project (NGP). ABlawg has been following this project for some time. Earlier posts include a post on the relationship between the National Energy Board (NEB) and the Governor in Council, a post on BC’s conditions for oil pipelines as well as a series of posts by Shaun Fluker here, here and here particularly on Species at Risk Act (SC 2000, c.29) issues with respect to the report of the Joint Review Panel (JRP) and the Governor in Council’s decision, and Martin Olszynski’s post on the JRP Report. In addition, I offered an earlier account of the Federal Court proceedings in August 2014 which was published in Energy Regulation Quarterly.
As readers will recall, the JRP issued its Report in December 2013 recommending approval of the NGP subject to satisfaction of some 209 conditions. The Governor in Council ultimately accepted the JRP’s recommendation in June 2014. Various judicial review and appeal applications have been launched with respect to both the JRP Report and the decision of the Governor in Council. All of these applications have been consolidated (see 2014 FCA 182 and apparently a supplementary order of December 17, 2014 referred to in 2015 FCA 27 at para 1) and a schedule established with a view to a hearing in Fall 2015.
The decisions commented on here therefore all deal with various interlocutory matters. The first two decisions were handed down by Justice Stratas on January 27, 2015. The straightforward issue in Forest Ethics, 2015 FCA 26 was whether the National Energy Board should be added as a respondent in one particular application, A-514-14, having already obtained that status in the consolidated applications. The appellants opposed respondent status suggesting that the NEB should be treated as an intervener on the grounds that a tribunal has only limited participation rights on the appeal or judicial review of one of its decisions. Justice Stratas concluded that the Board’s submission showed that it was well aware of the limits on its participation, and that since, in a technical sense, the application is an appeal from the Board’s decision the NEB should be treated as a respondent.
The second decision handed down in January, 2015 FCA 27, dealt with the extent to which parties might be able to supplement the record with affidavits. The Court anticipated this issue in its consolidation order of December 2014. In that Order the Court took the position that it would not allow affidavit evidence with respect to constitutional matters that had not already been raised before the Board, since the NEB has the jurisdiction to consider constitutional matters and any effort to raise new questions would inappropriately bypass the Board: see Forest Ethics v NEB, 2014 FCA 245, commented on here. In this application for leave to file evidence Justice Stratas noted that most of the affidavits “bear upon the issue whether there was a duty to consult” (at para 8). Justice Stratas permitted the affidavits to be filed but left the ultimate admissibility of these affidavits to be determined by the panel hearing the matter. While he was unclear as to the extent that the affidavits might have been raising new constitutional issues, Justice Stratas was referred to several authorities suggesting that the courts had taken a more relaxed view concerning the admissibility of new evidence in cases concerning Aboriginal peoples: see Chartrand v The District Manager, 2013 BCSC 1068, 52 BCLR (5th) 381; Tsuu T’ina Nation v Alberta (Environment), 2008 ABQB 547, 453 AR 114, aff’d 2010 ABCA 137, 482 AR 198; Enge v Mandeville et al., 2013 NWTSC 33,  8 WWR 562; and Pimicikamak Band v Manitoba, 2014 MBQB 143, 308 Man R (2d) 49.
While by no means convinced as to this line of reasoning Justice Stratas acknowledged that this issue had not been considered by the Court of Appeal (at para 10). Similarly, Justice Stratas also left to the hearing panel the question of whether the test for the admissibility of fresh evidence on a statutory appeal under the National Energy Board Act, RSC 1985 c N- 7 (NEBA) was governed by Palmer v The Queen,  1 SCR 759 or by an administrative law standard (at paras 11-13).
In the third decision, 2015 FCA 73, Justice Stratas was called upon to rule on two contested applications to intervene, one from Amnesty International in support of the appellants and a second from the Canadian Association of Petroleum Producers (CAPP) in support of the respondents. Justice Stratas considered both applications in light of the Federal Court of Appeal’s decision in Canada (Attorney General) v Pictou Landing First Nation, 2014 FCA 21, 456 NR 365, which set out this test:
Amnesty proposed to focus on international law issues as part of its intervention. Justice Stratas granted Amnesty’s application on terms. In doing so he took the view that the intervention “casts things too broadly” insofar as it suggests “that international law is very much at large on all issues in many different ways” (at para 11). In his view, international law might be relevant to the matter at hand in one of two ways. First, if there are multiple possible interpretations of a legislative provision the court should prefer an interpretation that would not put Canada in breach of its international obligations. Second, international law might also be relevant with respect to the exercise of a discretionary power – although in that context it would likely be necessary to show that the failure of the statutory decision maker to follow the guidance of international law would be unreasonable (at para 18):
That failure may or may not render the decision unreasonable. Much will depend on the importance of the international law standard in the context of the particular case and the breadth of the margin of appreciation or range of acceptability and defensibility the decision-maker enjoys in interpreting and applying the legislative provision authorizing its decision: see, e.g., Canada (Minister of Transport Infrastructure and Communities) v Jagjit Singh Farwaha, 2014 FCA 56 at paragraphs 88-105.
While I think that these are simply two situations in which international law might be relevant to the application of domestic law rather than an exhaustive statement of the relevance of international law, they do serve as a reminder to counsel that it is not enough to adduce a body of international law but that it is also necessary to show how that body of law might make a difference in terms of outcome.
Justice Stratas was especially cautious with respect to the connection between the duty to consult and accommodate and international law. Here Justice Stratas observed (at para 19) that:
In the case of the duty to consult, decisions of the Supreme Court are binding on us and have defined the duty with some particularity. We are not free to modify the Supreme Court’s law on the basis of international law submissions made to us. International law, at best, might be of limited assistance in interpreting and applying the law set out by Supreme Court.
But even with this restriction, there should be considerable opportunity to argue that international law might inform such matters as: the content of the duty to consult, the significance of the right to culture, the respect that should be accorded to indigenous conceptions of property, and the question of what might constitute an unjustifiable infringement of an aboriginal right or title or a treaty right: see my post on the Supreme Court’s Grassy Narrows decision here.
Justice Stratas summarized his instructions to counsel (at para 36) as follows:
Amnesty International’s written and oral submissions shall be limited to issues of international law, but only insofar as they are relevant and necessary to any of the issues in the consolidated matter. It must explain, in legal terms, how and why the particular international law submission is relevant and necessary to the determination of a specific issue, with specific reference to the law set out above or other law bearing on the point. For example, it will have to identify a legislative provision that is ambiguous or that authorizes more than one exercise of discretion and then identify the international law that it says is relevant to the issue.
Justice Stratas also invited counsel for the respondent to consider whether it might need to apply to extend the approved length of its memorandum of fact and law once it had had the opportunity to review the intervenor’s arguments (at para 30). Justice Stratas had rejected an earlier application from Enbridge to file a more extensive memorandum: 2014 FCA 182 at para 26.
In some respects, the application from CAPP to intervene seemed to present more difficulty than that posed by Amnesty’s application. After all, as Justice Stratas himself acknowledged (at para 32):
The Association appears to be doing nothing more than advancing submissions that the respondents can themselves advance. The submissions do not reflect any particular perspective of the Association, a group of entities whose economic interests are affected by the Northern Gateway Pipeline Project.
What were the clinching factors here that justified allowing CAPP to intervene (again on terms)? Justice Stratas referred to three considerations. First, the Court acknowledged that the decision to approve the project had involved public interest considerations (or public convenience and necessity in the argot of NEBA) and that (at para 34) “The Association is well-placed to speak to the issue of public interest. It represents a broad segment of the public affected by the decision below.”
While the first part of this proposition is clearly uncontroversial, the suggestion that CAPP is broadly representative of the public affected by the decision hardly seems intuitive.
The second relevant consideration seems to have been “equality of arms” (i.e. the need for “overall fairness in the litigation process” – see paras 23 and 36, referencing Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London, U.K.: Lord Chancellor’s Department, 1995)). And finally Justice Stratas noted that CAPP had been significantly involved in the mater under review.
But Justice Stratas also had advice and instructions for counsel to CAPP (at para 39):
[CAPP] shall make representations on the public interest considerations that come to bear on this Court’s assessment of the correctness or reasonableness of the decisions under review. If reasonableness review is relevant, submissions may be made on the size or nature of the range of acceptability or defensibility or the margin of appreciation that should apply to the decisions under review and whether the decisions under review are within those ranges or margins. To be clear, the draft memorandum it has presented to this Court does not comply with the requirements set out in this paragraph and will have to be amended.
And now we must wait for the Fall of 2015.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Glen Luther, Q.C. and Dr. Mansfield Mela
Case Commented On: R v Maier, 2015 ABCA 59
Mental illness presents a difficult issue for the sentencing judge. The Criminal Code, RSC 1985, c C-46 requires that in sentencing an accused a court must apply the fundamental principle of sentencing, contained in s. 718.1, which requires that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
In sentencing a mentally ill offender who has been convicted of an offence a judge must decide on the degree of responsibility of the offender and balance that against the gravity of the offence. It is clear of course that many mentally ill individuals are in fact guilty of the offence they committed as the provisions of s.16 of the Code relating to criminal responsibility are very narrow and exempt only the rare individual from being seen as having committed their crime. How then do we sentence the guilty but mentally ill offender and how do we decide how responsible they are for the offending behaviour?
In R v Maier, 2015 ABCA 59, the Alberta Court of Appeal recently was faced with sentencing a mentally ill accused for spitting in the face of a volunteer care worker in a fit of anger after the accused was asked to leave the shelter in which he was living as a result of an apparent dispute with another resident. Before the Trial Judge Mr. Maier had pled guilty to common assault and two counts of failure to appear. The Crown informed the Judge that the accused was a carrier of the HIV and Hep-C viruses which was accepted by the accused. The Trial Judge sentenced Mr. Maier to 24 months in jail on the assault and 30 days concurrent on each of the two fail to appear charges. On appeal it was proven and accepted by the Crown that the accused was not a carrier of either virus they had alleged at trial and that at the time of one of the two failure to appear charges that the accused was actually in custody and thus not guilty of that count. The Appeal Court, in acknowledging these errors, decided it needed to sentence the accused afresh.
The Court of Appeal divided 2-1 on the appropriate sentence to be imposed with the majority imposing a sentence of 20 months imprisonment for the offence of common assault. On its face, this was a very harsh sentence in the circumstances and one which was, according to the accused’s counsel and Mr. Justice O’Ferrall, in dissent, outside the range of sentence normally imposed for such conduct. Indeed, in reviewing the case law involving spitting at law enforcement officers, where the accused does not suffer from one of the listed diseases, it is clear that the range of sentence across the country is somewhere in the range of 1 month to 12 months. In R v Ali, 2006 ABQB 805 at para 31, Justice Lee gave a range of one to six months for spitting on a police officer. In R v Beaudin, 2012 ONCA 615, the Ontario Court of Appeal imposed a sentence of 12 months where the offender had a horrible record with many prior violent offences, including prior assaults on police. Finally in R v Cantell, 2003 SKCA 53, the Saskatchewan Court of Appeal imposed a 9 month sentence where the offender was drunk and spit at police and had 78 prior convictions on his record.
In Maier, the majority, based largely on the accused’s extensive prior record, went even beyond the 18 months sought by Crown Counsel. Mr. Justice MacDonald, with whom Madam Justice Veldhuis agreed, noted that the accused had previously been given 18 months on his last assault conviction. The majority then applied the “jump” principle and imposed the 20 month sentence (at para 42). They did so despite the fresh evidence that the accused suffered from, largely untreated, schizophrenia at the time of the offence. That is, they sentenced an accused with a severe mental health condition to 20 months in jail for spitting at a care worker because of his serious prior record and despite the above sentencing case law.
It is our view that the majority misunderstands the mental illness in question and is, in fact, punishing the accused for being mentally ill, all the while failing to appreciate or acknowledge that the criminal record of the accused shows that both the criminal justice system and the health system have been totally inept at changing this accused’s behaviour or in protecting the public. This result reminds us of British Columbia Judge Trueman’s wise statement concerning those being sentenced while living with Fetal Alcohol Spectrum Disorder in R v Harris, 2002 BCPC 0033, at para 167:
The cognitively challenged are before our courts in unknown numbers. We prosecute them again and again and again. We sentence them again and again and again. We imprison them again and again and again. They commit crimes again and again and again. We wonder why they do not change. The wonder of it all is that we do not change.
Indeed in a series of cases cited by the majority it appears the Alberta Court of Appeal has made it a principle of sentencing that only where the mentally ill accused has shown a pattern of following his or her prescribed treatment that the mental illness can properly be characterized as a mitigating factor in sentencing. On the other hand, where the accused has not followed the suggested treatment the mental illness becomes immaterial to sentencing or at worst an aggravating factor. In the latter situation the Court says something like what was said by the majority here (at para 40):
The appellant has in the past had the opportunity to comply with treatment and has consistently refused to do so. That being so, in our view, the mental health issue in this case is not a mitigating factor.
Our point is that the failure to “comply with treatment” is in many of these cases part of the very illness under consideration. To fail to realize that the denial of the presence of the illness on the part of the offender is in fact of a symptom thereof is to deny the presence of the illness.
Mr. Justice O’ Ferrall dissented and would have sentenced the accused to time served (8 months). He notes in his judgment that there is a sort of chicken and egg problem in such cases. Mr. Maier’s record of 79 convictions including 11 assaults, 12 failures to attend court and 10 failures to comply with court orders was described by the Trial Judge as “bordering on ridiculous” (at para 6). It appears that Maier’s schizophrenia likely preceded all of these offences.
To punish a mentally ill offender over and over again for failing to follow court orders, including failures to appear in court, is to sentence an accused for being mentally ill. To not be concerned that a person’s mental health condition is causing him to be belligerent to those around him is to ignore the very reason he is before the court. One wonders what is ridiculous, the offender’s criminal record or the continued insistence of courts that the accused must learn a lesson, and a jail sentence be imposed, to show deterrence. If it was not clear all along, it should be clear to this Court that this sentence is unlikely to deter this accused or any other like-placed accused.
One is forced to ask what steps the health or justice system of Alberta has taken to ensure that Mr. Maier received treatment for his schizophrenia? There are of course Community Treatment orders under Alberta law. Has one been tried for this accused? There are injections that can be given for treating mental illnesses which are much more easily policed and which endure for weeks. Has this been tried in Mr. Maier’s case? Has Mr. Maier received treatment or motivational interviewing designed to create awareness of his condition and understanding of why he must take his medications? The Court was provided with a discharge summary from a doctor at the Peter Lougheed hospital which suggested the accused had consistently been uncooperative with the treatment prescribed but also that he had been out of touch with the hospital for three years. The report apparently added that during those three years Mr. Maier fared well without the services. It appears that much of that time he may have been imprisoned, which is not noted by the majority. Certainly it appears the Court had inadequate information to determine why and whether Mr. Maier had been treated and how. No psychiatric assessment or complete history was provided to Court – the Criminal Code does not allow for a psychiatric assessment to be ordered for sentencing purposes despite calls by many for such a change to be brought into force (e.g. The Canadian Bar Association has made calls for changes to the Criminal Code to allow assessment at least for FASD. Also see here). Yet in this case it appears that both the Trial Judge and the Court of Appeal imposed a particularly harsh sentence on Mr. Maier in the absence of adequate information about his medical history and his past history of treatment.
The Supreme Court in Starson v Swayze, 2003 SCC 32, decided that competent accused are within their rights to refuse treatment, especially in the case of psychoactive medications routinely prescribed to individuals with schizophrenia. These drugs have significant side-effects, lethargy and weight gain being often cited. There are, in fact, many other reasons why some patients will refuse treatment – fear of being poisoned, lack of insight, paranoid delusions, and more importantly a lack of motivation appears in some individuals suffering from schizophrenia. We suggest that to say Maier’s illness was not a mitigating factor because he was not complying with treatment fails to understand that the origin of that lack of cooperation is the very disease from which the Court accepts the accused is suffering. Surely we can understand that the treatment of those with this illness requires compassion and skill. Sometimes it requires force. In no way can it be therapeutically required that we imprison a person to teach them a lesson.
This man will be back, in the absence of adequate treatment for his condition, and it seems the criminal justice system is unwilling or unable to attempt to ensure the necessary treatment is provided. Justice O’Ferrall, in dissent, would have at least tacked on probation with a condition that the accused take his medication (at para 61). While this man’s conduct is criminal, his lack of treatment would appear to be equally so. Thoughtful judges agree that their role is to protect the public. With decisions like that in Maier, that is only very temporarily so, i.e. while he is incarcerated. It is suggested that until the courts accept responsibility to attempt to ensure people with Mr. Maier’s mental health conditions become engaged in their treatment we will continually be confronted with obstinate mentally ill offenders who we will pretend we are punishing. In fact we are at the same time ignoring that there are steps we might take to protect the public in the longer term but are unwilling to take. Therapeutic jurisprudential approaches to mental health provide hope to prevent future offending by such individuals. In those that are dangerous, surely it is incumbent on courts to take charge of managing a treatment plan to protect public safety but also to attempt to improve Mr. Maier’s life. It is also incumbent on the criminal courts to carefully assess such cases. What happened before His Honour Judge Wilkins at trial appears to show undue haste on the part of both the Crown and the defence. The facts of this case show that if the lawyers and the court do not handle these cases thoughtfully, with a view to attempting to make real change in these accuseds’ lives, no one else will. Indeed, one cannot end this discussion without noting that so far Mr. Maier’s offending would appear to be more of a nuisance than anything else. He has not killed anyone but one wonders whether our continued incarceration of him without treatment will mean that he may eventually do so. We can then pretend that would be his own fault for not learning from his previous punishments but that will be little consolation to the victim of that crime. Our job, those of us who are not mentally ill, surely should be to take responsibility early so as to attempt to rectify the tragedy of his illness and to protect his future victims.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Saul Templeton
In the comments to my first post on Trinity Western University, it was suggested that TWU should be given the benefit of the doubt concerning its policy on admitting trans students (or, more accurately, its lack of any policy on this issue). Perhaps TWU simply has not considered whether and if it would admit trans students, and joint submissions could be made to TWU on why it ought to admit trans students.
I appreciate the sincerity of this offer. However, I must respectfully counter that accepting trans students in principle would solve none of the problems with TWU’s Community Covenant. I raised the question of what TWU would do with trans students and applicants in a previous post because there are really two issues here: (1) would TWU accept trans people at all, even if they were married and sexually active with their spouses; and (2) if trans people were accepted at TWU, how could TWU possibly apply the Covenant to trans people in a way that is both logical and in accordance with biblical morality?
Trans people come with as broad a range of gender expression and sexual orientation as exists in the general population. Trans people can be straight, gay, asexual or bisexual just like cisgender (non-trans) people. Many trans people do not identify as either male or female, and may be more comfortable identifying as neither binary identity, or as somewhere in between. There is currently litigation ongoing in Quebec over the ability of trans and intersex individuals’ ability to choose their gender markers on government identification. The Plaintiffs’ Amended Notice to the Attorney General in that case reflects some of the range of binary and non-binary identities within both the trans and intersex communities.
For the sake of simplicity, here I will just use the examples of straight trans men and gay trans men to illustrate how absurd it is to try to enforce gender-based prohibitions on sex to the spectrum of gender identity and expression that exists in the real world.
To define my terms: trans men are people who were assigned female at birth but identify as male. A straight trans man would only be interested in sexual interaction with women; a gay trans man would only be interested in sexual interaction with men. The reality is much more complicated of course because many trans people are not attracted solely to one form of gender expression, and trans people may be attracted to other trans people. A straight trans man might be interested in both cisgender and trans women, regardless of how far (or whether) a trans woman pursues medical transition. A gay trans man might be interested in both cisgender men and trans men, regardless of the physical configuration of either category of male-identified persons.
Category 1: Straight Trans Men
Many straight trans men who can, and are willing to, undergo medical transition will end up looking like muscular pinnacles of masculinity. I assume this is the category of trans men most likely to be accepted by TWU, if they are accepted at all. When these hyper-masculine trans men marry women (cis or trans) they may indeed look to all observers like a heterosexual couple in accordance with the Covenant’s prescription of marriage between one man and one woman.
But not all trans men can, or are willing to, undergo medical transition. Some trans men have medical contraindications for taking testosterone, or their bodies may not tolerate its side effects. A trans man can identify as male without wanting to undergo hormone replacement therapy at all. For medical, personal or financial reasons, he may delay or forego hormonal and/or surgical transition entirely. Trans men who do not undergo medical transition, for whatever reason, deserve to have their gender identities respected. It is a legal requirement that these identities be respected, at least in British Columbia, Alberta and in other provinces that have struck down surgical requirements for trans people to change their gender markers (See C.F. v Alberta (Vital Statistics), 2014 ABQB 237, and Jennifer Koshan’s ABlawg post on that case). If these trans men are straight (i.e., date and marry women) they may appear to mistaken external observers as lesbians, even though they identify as male and ought to have their straight identity respected when dating women.
How would TWU deal with the latter category of trans men? In the best case scenario, TWU would respect these straight trans men as reserving sexual intimacy for marriage between one man and woman, even if these trans men do not medically transition, and even if external observers mistakenly perceive them as lesbians. Otherwise, TWU would set itself up as the arbiter of which members of its community are trans enough to have their straight sexual orientation respected under the Covenant. This would be a morally unacceptable position for TWU to take, in my view. It would not be supported by statistics on the extent of medical transition for most trans people, or by all of the trans community.
Category 2: Gay Trans Men
Here things get even more complicated. It is possible, and not incredibly uncommon, for trans men to become pregnant and give birth, even if they have been on testosterone for some time and look phenotypically male. How can the Covenant possibly accommodate this reality, if trans men are allowed to study at TWU? The Covenant specifies, “according to the Bible, sexual intimacy is reserved for marriage between one man and one woman, and within that marriage bond it is God’s intention that it be enjoyed as a means for marital intimacy and procreation”. Gay male couples can procreate through ordinary sexual intercourse, where one man is trans. So a gay male couple could be in violation of the “one man and one woman” rule, but also have sexual intercourse that is a “means for marital intimacy and procreation”. And, as in the example above, a gay trans man might be unable or unwilling to medically transition, so a gay male couple could appear to mistaken observers as heterosexual. Would only the latter kind of gay male couple be acceptable under TWU’s Covenant?
There is no biblical prescription that I am aware of for resolving these problems with enforcing the Covenant. That is why I suggested in my second TWU post that TWU might have to force students and employees to swear that they do not, and never will, identify as trans. Otherwise, TWU runs into irresolvable conflicts in any attempt to enforce the Covenant against trans people.
Intersex Individuals: One of Many Possible Examples
We could assume for simplicity that TWU would accept married, sexually active trans students only if they had medically transitioned and only if they identified as heterosexual. (Although this would not be a logically or morally defensible position, for the reasons outlined above). If TWU took this position, it might be defensible under the Covenant and would not be logically inconsistent with denying gay and lesbian equality. However, this still does not answer the issue raised in my second TWU post of what TWU would do about existing and future students who are intersex. As pointed out earlier, it is not an option for intersex students to simply attend another university, since they might discover their intersex status while studying at TWU, and after they are already married. (And query whether such students should be required to seek education elsewhere even if they are aware of their intersex status when applying to TWU, assuming they meet all other criteria for admission and hold beliefs in accordance with the Covenant). There are documented cases of mistaken homosexual marriage dating back to at least the late-nineteenth century, resulting from intersex difference and that doctors tried, and often failed, to break up. It would be discriminatory to expel, or reject an application from, an intersex person because TWU deems their marriage to be “same sex”. And if TWU decides not to discriminate against intersex people because of their choice of marriage partner, it cannot defensibly continue to discriminate against gay and lesbian married couples.
I did not want to get into medical details in these blog posts, but it seems necessary at this point to provide at least one example of intersex persons who could suffer harm from TWU’s Covenant. And again, if TWU makes exceptions for intersex students, it is absurd to not also make exceptions for gays and lesbians.
There are many ways a person could experience intersex difference, either from a variation in sex chromosomes or from other natural causes of intersex difference in phenotypical development. Some people with XY chromosomes (that we would usually consider to correspond with the male sex) have androgen insensitivity syndrome (AIS). A person could be mildly, partially or completely insensitive to androgens: this means their cells will be partly or completely unresponsive to masculinizing hormones like testosterone. Such an individual with the typical “male” XY chromosomes may develop testes that produce androgens, but may develop to otherwise appear female.
AIS was the subject of an episode of House, MD that has been sharply criticized by members of the Intersex Society of North America (ISNA) for homophobia and for its complete disregard of gender identity as independent from sex chromosomes. House misgenders his patient, calling her male because her chromosomes and genetics supposedly determine her gender. According to the ISNA, individuals with AIS are “clearly women”; but the ISNA still advocates against the surgical removal of the testes of a person with AIS in infancy. Instead, the ISNA recommends waiting to offer surgery until an individual with AIS can make an informed decision about whether or not to accept surgical intervention. Gender identity must be left for the individual to determine – for those with AIS and indeed for the general population as well.
Whom would TWU permit an individual with XY sex chromosomes and testes, but presenting as phenotypically female, to marry? Why should this be any of TWU’s business, and why should we even find it necessary to ask these questions? It is only because TWU defines marriage as between “one man and one woman” that these questions arise – and because the definitions of “man” and “woman” are not watertight compartments. In my view, it would be unacceptable for TWU to place any restriction on the marital options of a person with XY chromosomes and AIS. Intersex people must be permitted to define their own gender identity, and must be permitted to marry people of any sex, binary or otherwise. But if intersex people are given this free rein to determine their own gender and the gender of those they pursue as life partners, it follows that everyone else must be permitted the same freedoms.
Here is another pressing question: if a person discovers their intersex difference while studying at TWU, what kind of psychological harm will be inflicted by TWU’s refusal to acknowledge any category of sex or gender outside the biblically prescribed binary? As explained in my previous post, the number of current TWU students and past alums make it almost certain that TWU has, or had and will have, intersex students. This is the case even at the lowest estimates of intersex difference in the general population of one person in 2,000. It is simply the case that there are or were, and certainly will be, intersex individuals at TWU, even if TWU’s administration sincerely believes that the bible only prescribes binary sex categories.
Will TWU expel students who appear to be in heterosexual marriages but discover they are intersex? For example, if they are in the 3% of men seeking fertility treatment who turn out to have XXY sex chromosomes? Or will it permit those students to continue their studies and preserve their marriages? I would be surprised if anyone argued that the former option is acceptable by any moral standard. If TWU takes the latter position, that intersex people should be permitted to remain in marriages that may or may not appear heterosexual to outside observers, there is no reason to deny gay, lesbian and trans people the same freedom.
By: Sarah Burton
Legislation Commented On: Gaming and Liquor Act, RSA 2000, c G-1
Six years ago, the Province of Alberta amended the Gaming and Liquor Act, RSA 2000, c G-1 as part of a broader policy to crack down on gang related activity. Section 69.1 of the Act allows police officers to “exclude or remove from licensed premises any person the police officer believes to be associated with a gang.” Almost immediately, the amendment raised a number of serious constitutional concerns (see here). Political pressure to shut down gangs, however, proved more powerful than any protest from civil libertarians and Charter enthusiasts. Despite the multitude of objections, the amendment came into effect and has been in force since 2009.
Given this history, it strikes me as odd that the provision has never been considered (or even mentioned) in any reported decision. Why is that? Perhaps the law is not being used at all. Maybe persons who resist are being charged under different provisions, or charges are being dropped before trial. It is difficult to fill in the reasons for a gap in judicial consideration, but given the constitutional concerns that were immediately evident, the absence of any case law is a puzzling cause for concern.
This post is intended to circle back on the “gangbuster” amendment to explore what has transpired since its enactment. It also reconsiders and fleshes out questions about the amendment’s constitutionality.
Details of the Amendment
Section 69.1 of the Gaming and Liquor Act seeks to remove gang members or their affiliates from any licenced premises in Alberta. While this is a laudable goal, the means used to reach this end are problematic. Most notably, the amendment permits police officers to exclude or remove a wide range of individuals from the premises, some of whom would have very tenuous links to a gang, if any. Specifically, the law authorizes the police to remove or exclude from any licenced premises (a) gang members, (b) anyone who supports, facilitates, or associates with gangs, or (c) anyone “in the company” of (a) or (b).
This exclusionary power is triggered based on a police officer’s good faith belief. This belief can stem entirely from third party information that, for example, the targeted person was present at the scene of unlawful gang behaviour, whether or not they participated in the activity. The third party information could also indicate that a person receives benefits from a gang, or associates with someone who, in turn, associates with a gang (see subsections 69.1(4) and (5)).
If the targeted individual refuses to comply with the order of exclusion or removal, they are deemed to be a trespasser (see subsections 69.1(6) and (7)). The full text of the provision is available here (see section 69.1).
Some (Hypothetical) Fact Patterns
As outlined above, the anti-gang amendment has never been judicially considered (in a reported case at least). This interesting gap, and the consequences flowing from it, is discussed in more detail below. Before that, however, I’ve included a few hypothetical situations that would seem to fall within the four corners of the provision. These scenarios are theoretical, and are intended to give context to the law and highlight potential problem areas. The anti-gang amendment has the power to capture the following individuals:
These examples highlight two issues, each of which will be discussed in more detail below:
Questions of Constitutionality
On its face, the anti-gang provision raises two constitutional red flags.
Section 69.1 plainly targets association. Its goal is to remove or exclude persons who are associated with a gang – a conclusion reached if a police officer believes that a person is “in the company” of (a) a gang member, or (b) a person who supports, facilitates or participates in gang activities.
Freedom of association is protected by section 2(d) of the Charter. It protects people’s right to associate with others “both to satisfy [their] desire for social intercourse and to realize common purposes” (Reference re Public Service Employee Relations Act (Alberta),  1 SCR 313, 1987 CanLII 88 (SCC) at para 152, as cited in Fraser v Ontario (Attorney General), 2011 SCC 20 at para 20). While the vast majority of section 2(d) cases deal with labour disputes (see a post on several recent decisions in that area here), freedom of association is not constrained to that sphere. Any law that targets association itself will draw section 2(d) scrutiny. As Chief Justice McLachlin explained in a non-labour context, “[s]ection 2(d) will be infringed where the State precludes activity because of its associational nature” [emphasis in original removed] (Harper v Canada (Attorney General),  1 SCR 827 at para 125).
Like all Charter provisions, section 2(d) is not limitless. The first relevant limit is implicit within Chief Justice McLachlin’s quotation above. Section 2(d) inquiries in a non-labour context are focused on the state’s attack on the association itself, not the activities flowing from the association (Harper at para 126). In the present situation, however, the anti-gang amendment appears to be squarely targeting the association itself. The provision is triggered by being in the company of a suspected gang affiliate.
In addition, the right to free association only protects the freedom to join with others in lawful common pursuits (Dunmore v Ontario (Attorney General), 2001 SCC 94 at para 14). Thus, gangs have no constitutionally protected freedom to associate with each other. The anti-gang amendment, however, appears to target association that is not necessarily unlawful. It targets people who are merely in the company of others that may be gang members. Moreover, it specifically targets these individuals while they are partaking in legal activities. Thus, the amendment stands on a shaky foundation as a result of interference with the Charter-protected freedom of association.
The second constitutional red flag raised by the anti-gang amendment is overbreadth. A law’s potential overbreadth is relevant in two areas of Charter law.
First, it arises under section 7 of the Charter. Section 7 provides that any deprivation of life, liberty or security of the person shall not occur except in accordance with the principles of fundamental justice. An overbroad law offends the principles of fundamental justice (R v Heywood,  3 SCR 761, 1994 CanLII 34 (SCC) [Heywood]; Canada (Attorney General) v Bedford,  3 SCR 1101, 2013 SCC 72; Carter v Canada (Attorney General), 2015 SCC 5).
Second, the government would have a difficult time demonstrating that an overbroad law is minimally impairing under the section 1 proportionality analysis. An overbroad law is neither minimally impairing nor proportional.
Section 69.1 may be characterized as overbroad in a number of ways:
Before concluding that this overbroad law breaches section 7 of the Charter, however, we must first determine that section 7 applies. Section 7 is only “triggered” when there is a state deprivation of life, liberty, or security of the person. Typically, it is engaged when criminal laws impose a threat of jail time (and hence, the liberty interest). Section 69.1 does not impose a direct link of imprisonment. Instead, it deems targeted persons to be trespassers that may be levied with a fine. This creates a possible, but tenuous, link to imprisonment down the road. Nonetheless, I would argue that section 69.1 restricts liberty and engages section 7, because it prohibits people from being somewhere they are otherwise entitled to be. This reasoning was adopted in the Heywood decision to conclude that a prohibition on loitering engaged section 7 (Heywood at 789-790). While Heywood dealt with public property and a more direct link of imprisonment, I would argue that its conclusion on section 7’s application applies to the present case.
Presuming a violation of section 2(d) or section 7 could be demonstrated, the Province would have a steep hill to climb to justify the violation under section 1. Section 69.1 has the ability to adversely impact many people who have done nothing wrong, including the family members of gang affiliates and other people who happen to know a suspected gang member. It also has great potential to be used in a way that targets minority groups. It is difficult to imagine a situation where a court would find that this is a minimally impairing or proportional response to the threat of gangs at a licenced premise.
The Lack of Oversight
The concerns outlined above are interesting fodder, but they are so far purely academic. Whether by design, implementation, or Crown policy, this law is simply not coming before the courts. We can only speculate as to why. Maybe it isn’t used at all, but somehow I doubt that. Perhaps it is being used as a trigger for the exercise of more serious police powers, including weapons searches. Maybe persons who resist are being charged under different provisions, or the charges are being dropped before trial. While it is impossible to conclusively determine the cause of this gap, given the interests at stake and the Charter concerns evident on the face of the legislation, the absence of any case law is unsettling.
The anti-gang amendment has the potential to be used with reasoned restraint or excessively as an abuse of power. The distinguishing feature between these two results is the requirement that a police officer act with good faith belief and on trustworthy third party information. Given the real or de facto policy of not prosecuting these cases, however, we have no idea whether or to what extent the law is being practically implemented. This is not meant to serve as a blanket criticism of the police officers who are acting in good faith to rid bars, casinos and other licenced premises of gang activity. There is no doubt that this is a worthy goal, and that police officers require sophisticated tools to deal with organized criminality. However, the constitutional uncertainty presented by this law serves no one. It is possible to support anti-gang policies, and yet oppose this hazy and imprecise exercise of power. In any situation where police powers are exercised, a consistent and systematic lack of oversight should always be a cause for concern and scrutiny.
The anti-gang amendment was sold as a tough on crime call to action (see here). It came into force amidst public support from Albertans who are reasonably concerned about curbing gang related violence. Given that no one wants to be seen siding with gang members and their possible affiliates, cries that this law went too far fell on unsympathetic ears. Six years out, however, it is time to objectively look at the amendment. How many people have likely been targeted by it despite a lack of any wrongdoing on their part? Who do you think they are, and how do you think they feel? I would imagine that they feel wronged and humiliated by a seemingly arbitrary exercise of police power. The anti-gang amendment may have a laudable goal, but its means and lack of oversight are alarming, and ought to be reconsidered.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: John-Paul Boyd
This is the note on rethinking our approach to family justice that I never thought I’d find myself writing, and as a result I need to begin with an explanation and an apology. In this short post, I describe what I see as lawyers’ duties to promote settlement, to respect informed compromise and to refrain from litigating family law disputes without good and sufficient reason. First, however, I’ll explain the circumstances that have provoked me to write.
I’m involved in a number of the present efforts to reform family justice. In one particular group, I have received a certain amount of kickback when I suggest that lawyers should play a larger role at the front end of family law disputes, in order to steer as many of those disputes away from court as possible. (Well, perhaps not kickback so much as dismay.) I would invariably respond that the early involvement of lawyers would result in the parties receiving an explanation of the law and the range of likely outcomes, thereby minimizing unreasonable positions and moving the parties toward settlement, as I have described elsewhere. Although this struck me as self-evident, it is not.
I recently had the pleasure of a lengthy road trip with a colleague that gave us lots of time to talk about access to justice, the nature of the reforms required and the barriers to those reforms. I was taken aback to learn that many of the members of her local bar preferred to take adversarial positions in family law disputes, were generally disinclined to pursue out of court resolution and often took a hard line when giving independent legal advice on mediated settlements that encouraged litigation. She suggested that there were two reasons why the family law bar took this approach, firstly because litigation is where the money is (which is true), and secondly because lawyers have a duty to zealously advocate for their client’s interests (which is sort of true). Another lawyer, a leader within his province’s bar, independently made this latter point later the same day. Upon reflection, I suspect that there are other factors that explain this sort of antagonistic approach, including tradition – “this is the way we’ve always done it” – and a sort of old school lawyerly machismo that views willingness to negotiate as a sign of weakness.
Needless to say, these perspectives on the attitudes of the local bar surprised me, and as a result I must apologize for my misapprehensions and whatever scant degree of priggish self-righteousness may perchance have escaped my lips. I should also thank Rob Harvie, QC for his thoughtful comments on an earlier draft of this note.
Let me now explain, and perhaps persuade, why lawyers have a duty to promote settlement and encourage their clients toward reasonable positions, and why Dante wasn’t too far off when he placed barratry in the eighth circle of hell.
Clients in Family Law Disputes
The clients of family law lawyers are uniquely vulnerable. They are not investment bankers dispassionately considering an IPO, nor are they career criminals facing another eight months for yet another B&E. They are people who often have had no prior involvement with the justice system, who are recovering from the breakdown of a important romantic relationship, who find themselves at odds over the very things that matter most in their lives, and who have little to no knowledge of the law that applies to their dispute or the courts that will process it. By and large, they are wracked by fear and anxiety about how their dispute will turn out, what will become of their children, how they’ll make ends meet and what their futures hold.
Although most clients’ fear and anxiety will dissipate over time, the emergence of a family law dispute is a time of profound uncertainty and unease. Legal advice given in such circumstances must be delivered with the deft and delicate touch that only experience provides. The right advice, in my view, can help the client reframe his or her experience of the dispute, rein in unreasonable expectations and improve the long-term chances of settlement. The wrong advice can needlessly damn a family to the conflict and enmity litigation engenders, and risks a permanently dysfunctional co-parenting relationship.
The advice provided by a skilled family law lawyer takes into account not just the text of the applicable legislation, but the case law interpreting that legislation, the applicable common law principles and the specific circumstances of the family as described by the client. Such advice is rarely if ever exact, in the sense of if-X-then-Y; in family law matters the best that can usually be offered is the lawyer’s opinion as to the range of potential values Y might hold. Although the ultimate value of Y is unknown, the lawyer’s advice should give the client an understanding of the basic law, some expectation of what lies ahead and a sense of the limitations of probability. It has been my experience that clients invariably appreciate this sort of advice at initial consultations, regardless of whether I’d given them good news or whether I’d agreed to take their case; even those clients for whom I was unable to find a silver lining left my office with a weight off their shoulders and a palpable sense of relief. All of those clients left my office better informed about the law and range of likely outcomes.
The conduct of a file after this initial consultation requires ongoing legal advice as to the client’s options, the range of outcomes and opportunities for negotiation, adjusted to account for improvements in the information available as a result of disclosure and discovery, and the evolving circumstances of the parties and their children. The client’s emotional state has a significant impact on the advice given about options for settlement; I have consistently found that the further my clients moved toward accepting both the end of their relationship and the parameters imposed by operation of law, the more opportunities for compromise and settlement arise. Contrary to the general rush to conclusion urged by studies such as the report of the national Action Committee’s family justice working group, files that would be impossible to settle at the beginning of the case often prove remarkably tractable once the passage of time has worn away the sharp edges of the parties’ emotions. Of course, trial always remains available in the event negotiations fail.
This, mind you, is just one way of doing things. An alternative approach might be to uncritically validate the client’s fears and anxieties and take the resulting instructions without assessing: the potential fallout from carrying them out; whether they are in the client’s interests or not; their odds of success; and, their probable long-term repercussions on the client’s relationships with the opposing party, the children and the children’s extended family.
Of course, these two approaches are merely points on a continuum; I do not mean to suggest that family law lawyers either do one or the other. Some lawyers place greater emphasis on negotiation and mediation; others are more inclined to start with litigation and work toward settlement as an end game. Some are more forceful in addressing unreasonable positions; others are less willing to challenge a client’s wishes and instructions. However, the difference between these approaches is not just a matter of personal style, there are professional obligations at play as well, and it is here that my concerns lie.
Lawyers’ Duties to their Clients
My colleagues are correct that lawyers have a duty to advocate for their client’s interests. That and integrity are probably the defining professional characteristics of being a lawyer. However, where I and my colleagues’ impression of the views of their local bar differ concerns the extent to which this duty is compatible with a settlement-oriented approach.
First, lawyers’ duty is not to provide zealous advocacy, that is a concept found in, and likely unintentionally borrowed from, the Model Rules of Professional Conduct of the American Bar Association, not those of the Canadian Bar Association. Our duty as advocates is much more restrained, an attitude that is especially appropriate for those practicing family law. Rule 2.1-3(e) of the Code of Professional Conduct for British Columbia, for example, says:
A lawyer should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law.
Rule 4.01(1) of the Alberta Code of Conduct says:
When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law …
The rule in Chapter IX of the Canadian Bar Association’s Code of Conduct says:
When acting as an advocate, the lawyer … must represent the client resolutely, honourably and within the limits of the law.
The job of an advocate, then, is to “endeavour” to “obtain” for the client the benefit of remedies “within the limits of the law,” and to do so in a “resolute” manner. This really doesn’t have quite the ring of “zealous” advocacy, does it?
The annotations to these rules are roughly similar between the codes. The Alberta commentary says, among other things, that:
In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will advance the client’s case … in a way that the promotes the parties’ right to a fair hearing in which justice can be done.
This too speaks of a restrained yet resolute advocacy. Lawyers must advance the issues and arguments necessary to “advance” their clients’ cases, not those necessary to “grind the opposing party into a crushing defeat.” Moreover, lawyers have a duty to present their cases in a manner that promotes the parties’ – plural! – right to a fair hearing.
Lawyers’ obligation as advocates to resolutely pursue the benefits authorized by law for their clients is set off, or supplemented, as I see it, by an obligation to pursue settlement. Rule 2.1-3(c) of the British Columbia code says:
Whenever the dispute will admit of fair settlement the client should be advised to avoid or to end the litigation.
Rule 2.02(7) of the Alberta code is a bit more forceful (emphasis added):
A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
For an otherwise milquetoast code, those are some strong words. They are mirrored by the rule in Chapter II of the CBA code, which provides that “the lawyer must be both honest and candid when advising clients.” The sixth comment on the CBA rule says:
The lawyer should advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis and should discourage the client from commencing or continuing useless legal proceedings.
These rules impose on lawyers a duty to “encourage” settlement “whenever possible,” providing always that the settlement be “fair” and “reasonable.”
Without a doubt, lawyers have an obligation to honourably and resolutely work toward such relief for their clients as is available under the law. This obligation, I suggest, is in no way incompatible with lawyers’ equal and ongoing obligation to pursue reasonable settlement and avoid litigation. It seems to me that the obligations are in fact complementary and that, at least in family law, the pursuit of reasonable settlement is resolute advocacy.
Lawyers’ Duties to Clients in Family Law Disputes
The litigation of family law disputes is rarely a happy and convivial affair. When a dispute heads to court, spouses who once trusted each other implicitly and gladly sacrificed their personal interests for the greater good of the whole suddenly and jarringly find themselves embroiled in an adversarial contest, and paying handsomely for the pleasure out of the equity in their home or their children’s patrimony. The negative consequences of litigation on families are legion, and are not limited to lawyers’ fees alone.
Surely, the avoidance of litigation, and the concomitant hazards it brings, is in the interests of most parties to a family law dispute and in the interests of their children as well. Encouraging our clients to consider alternatives to litigation is resolute advocacy and is in no way contradictory to our obligation to achieve a result within the limits of the law.
This is not to say that litigation is not necessary. It most certainly is. Litigation is required whenever orders are needed for the protection of persons or property, to prevent a child from being abducted or relocated in advance of trial, or to resolve a truly intractable dispute between truly intractable parties, including the mentally disordered. The commencement of proceedings can also be used to exploit the disclosure and discovery provisions of the rules of court, to chivvy an uncooperative individual into negotiations and to signal the commitment of a party to a particular position. That being said, litigation should generally be eschewed whenever possible, in my view, if its myriad harmful effects on the family are to be avoided.
Thankfully, there are alternatives to court for the resolution of family law disputes, many of which are quite popular within the bar. Lawyer-to-lawyer negotiations are often successful where counsel are prepared to take a pragmatic, solution-oriented approach to the points of difference between their clients and have the maturity to acknowledge the weaknesses of their clients’ positions. Mediation, with the right mediator with the right skill set, can resolve even the most unyielding differences – I’ve even successfully mediated mobility disputes, if you can believe it – particularly if the consequence of failure is trial. I am particularly fond of the holistic approach offered by collaborative processes that address the family’s emotional needs along with their legal issues, although I acknowledge that the cost of involving the required professionals can be prohibitive at times.
What duties, then, do family law lawyers owe to their clients? In my humble and likely mistaken opinion, they are these.
Now, I am well aware that litigation is where the money is. Nothing satisfies monthly billing expectations quite like a one-week trial; certainly none of the files I have resolved through negotiation, mediation or collaborative processes have ever paid as handsomely as the files that went to trial. However, the economics of a practice focusing on the pursuit of reasonable settlements are not as grim as I think most people expect, and in my experience a settlement-oriented practice yields pleasant collateral benefits from a quality of life perspective. Those adopting a settlement-oriented approach to their family law cases will need to maintain more active files to make ends meet (or satisfy the partners) than those persistently engaged in more adversarial approaches, however lawyers with such an approach deal with ex parte and short-leave applications less often, have equally fulfilling practices, are much more likely to go home before six o’clock, engage in fewer rancorous exchanges with opposing counsel, have smaller accounts receivable and are less likely to develop ulcers.
Curiously, in the end we do tend to resolve our files out of court, or in court with the assistance of a judge in a non-adversarial context. A national survey conducted by the Canadian Research Institute for Law and the Family in partnership with two prominent academics found that the bulk of lawyers’ family law files are resolved by lawyer-to-lawyer negotiations and that trial placed ahead of only arbitration and collaborative processes in the resolution of disputes:
The opinions of my colleagues suggest that these findings do not translate into how we handle initial consultations and independent legal advice on settlements, and this is where I think change is urgently required. The ultimate resolution of a file is one thing, but we have a positive duty to be settlement-minded right from the start.
The initial advice we give to our clients should be the sort of advice that identifies and discourages unreasonable expectations and dampens the flames of conflict. We should approach agreements with an attitude of respect for voluntary compromise, and accept that clients are motivated to settle by a host of intangible values in addition to their legal interests. We should discourage unnecessary litigation to the extent possible, even if it comes at the cost of a heavier personal file load. We should emphasize the need for global fairness to the family over unfair but optimal results for the individual, and address this consideration openly and frankly with our clients. We can be strong advocates for our clients while diligently pursuing our duty to encourage settlement as our codes of conduct require.
This post originally appeared on Slaw.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Alice Woolley
PDF Version: What Makes a Law School Great?
What makes a law school great? What should a law school curriculum seek to accomplish in light of the school’s obligations to its students, its university, the pursuit of knowledge, the profession, and society as a whole? What should a law school strive to be?
Every law school has to answer these questions one way or another, and events of the last few years – the crises of American legal education and Canadian articling, and global and technological shifts in the legal services market – have given them greater urgency.
In this post I want to share our law school’s recent efforts to answer them, and the significant curricular changes we have adopted in our attempt to bring ourselves closer to our standard for a great law school. This is not to suggest that our perspective and approach are the right ones (although I am in no way going to pretend to be neutral given I was Chair (later Co-Chair with Jennifer Koshan) of the committee leading the process). It is simply to put them out there as one law school’s view on what it should strive to be.
Our answer started at the level of general principles. In particular, we decided that a great law school program must focus on three things: competence, performance, and engagement.
Competence requires knowledge and understanding of the concepts, methods, analysis, reasoning and critical perspectives in and about law. It requires intellectual engagement and rigour, and is directly connected to the scholarly mandate of a University education. Performance requires the ability to translate knowledge into action. It is where intellect meets practice, and learning turns into judgment or – aspirationally – wisdom. Engagement requires intensity and resolution in learning, investing time and effort in preparing for and attending classes, in completing course work and through participating in extra-curricular activities.
Competence and performance are distinct yet connected. Knowing something does not wholly teach you how to use what you know. And using what you know may require abilities – communication, inter-personal skills, practice management – which are distinct from substantive knowledge. At the same time, however, performance is impossible without substantive knowledge. And the ability to use and apply substantive knowledge will deepen it.
Engagement connects to both competence and performance. To put it bluntly, the only way students will achieve competence and performance is through a program which engages them – in which they are motivated to do the work necessary to gain knowledge and to learn how translate that knowledge into action.
From that level of principle we moved to the more specific – and more difficult and contentious question – of how we could change the delivery of our program to better ensure our students are engaged in achieving both competence and performance. After a year and half of work by a Committee made up of a quarter of faculty, and another eight months of working with faculty as a whole and consulting with students, the Law Society of Alberta and the profession, we adopted significant changes to all three years of our curriculum. The new Calgary curriculum contains most of our existing courses, and maintains our strong specialization in natural resources, energy and environmental law. But it gives students more opportunities to develop performance, deepen their competence and to be engaged in their learning.
Traditional legal education teaches competence well. Most Canadian law school grads, including ours, have knowledge and understanding of the concepts, methods, analysis, reasoning and critical perspectives in and about law. What law schools don’t do particularly well is allow students to deepen competence through performance, or to learn the aspects of performance that are distinct from competence. The new Calgary curriculum aims to deepen competence and enhance performance. Specifically:
As an example, in Ethical Lawyering students will be evaluated through assignments that may include writing a short policy paper on a regulatory issue (e.g., ABS), drafting a law society complaint against a lawyer, drafting an originating notice to remove a lawyer for a conflict, drafting a statement of claim or defence given an allegation of professional negligence, writing a memorandum of argument in a case of ineffective assistance of counsel or writing a reflective essay on the lawyer’s obligation to pursue (or not) lawful but immoral actions for a client.
Over time the number of PBL courses will be expanded.
In order to foster student engagement – to encourage investment of time and effort in their legal studies – the Calgary curriculum focuses on 1) increasing student choice; 2) introducing more focused and intensive learning (to allow students to deepen their effort in one area rather than skimming the surface of several); and 3) improving scaffolding in the first year program.
The Calgary curriculum will remain a work in progress. We know that some changes will in practice work out better or worse than we envisioned them. We also know that the legal services market will continue to evolve, as will the resources and technology available to us as educators. We must continue to break down artificial separation between the academy and practice, where law as a lived enterprise is viewed as irrelevant to academic inquiry, and the academic study of law is viewed as irrelevant to practical problems. Part of our answer to the question of what makes a law school great must, in the end, include a willingness to continue to strive to achieve greatness, and never to assume that we’ve done so.
This post originally appeared on Slaw.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Saul Templeton
This post is a follow-up to my previous post, Trinity Western University: Your Tax Dollars at Work. The first two parts respond to issues raised in the comments to that post. The first part explains my position on the “irreducible conflict” between freedom of religion and freedom from discrimination on the basis of sexual orientation. The second part deals with whether a line can, or should, be drawn between TWU and other religious institutions and charities that discriminate. (Answer: all charities that discriminate on a Charter protected ground should have their charitable status revoked where the discrimination meets the charity law test of actions contrary to public policy). The third and last part explores TWU’s history of exploiting Canada’s charitable tax credit regime.
A note on terminology: my last post referred to TWU’s treatment of gay and lesbian individuals, because the courts have really only analyzed TWU’s Covenant’s impact on those two identities in the queer community. The courts have not truly included bisexual people in their analysis, and the “T” is honoured more in its omission than its inclusion. In this post I will expand the analysis, so I use the acronym LGBTQI+, for lesbian, gay, bisexual, trans, queer/questioning, and intersex. The “+” acknowledges that there are many other identities within the queer community.
My comments here mostly expand on the “T” and the “I”. I use “trans” throughout to stand for transgender and transsexual. “Trans*” is often used to refer to a broader range of trans identities, e.g., agender and non-binary. But in this piece I am using “trans” more specifically. I will refer to non-binary identities when I am writing specifically about them. This is not intended to exclude those other identities from the conversation, but to acknowledge that my analysis is narrow. There is room for further analysis of the Covenant’s impact on other identities.
The Underlying Substantive Issue (or, “Irreducible Conflict”)
I did not raise this issue in my previous post because it is not relevant to the question of whether TWU’s charitable tax status should be revoked. (The question of whether TWU should keep its charitable tax status engages charity law, which doesn’t require a balancing of Charter rights to determine that TWU is acting contrary to public policy). However, I will provide my answer here. The “irreducible conflict” is, in my view, a mis-framing of the issues. The problem of institutional discrimination against gay and lesbian individuals runs deeper than discrimination on the basis of sexual orientation alone: the Community Covenant polices meaningless gender categories. All sexual activity cannot be categorized as either heterosexual or homosexual, because not all human beings are male or female. This is both a logical and a practical problem with the Covenant: the numbers of students and alums of TWU practically guarantee that some of their student body was, is, or will be intersex. Trans people also present a logical conundrum for the Covenant. These problems betray a further layer of discrimination on the basis of intersex difference, gender expression and gender identity. They also reveal a dilemma that makes it impossible for TWU to justify discriminating against gays and lesbians.
TWU and its supporters frame (or, in my view, mis-frame) this debate as a conflict between:
I think the above is a fair phrasing of TWU’s, and its supporters’, general position. To put it another way, TWU lumps all consensual sex acts that do not accord with its interpretation of the bible into a category of chosen behaviour, from which any person could choose to abstain.
I will assume for the sake of argument that everyone could choose not to have consensual sex outside of marriage. The real objection to TWU’s Community Covenant is that gay and lesbian individuals cannot study or work at TWU, and enjoy a healthy, consensual sex life with another adult, even if they are married to the person they are having consensual sex with. This is a violation of gay and lesbian individuals’ right to be free from discrimination on the basis of sexual orientation. To sum up simply: this debate has been framed as one of religious freedom vs. freedom from discrimination on the basis of sexual orientation.
Discrimination against gays and lesbians is, at least in part, a result of societal norms about appropriate behaviour for each gender. Society, and parts of the bible, have defined these roles as male and female. Prohibiting homosexual sex is based on the assumption that “male” and “female” are watertight compartments, and that we can always determine which compartment a person fits into. Thus, the TWU debate is as much about policing the gender binary as it is about discrimination against gays and lesbians.
The categories of male and female are probably taken for granted by most readers. They appear obvious to most people, because we are raised in a culture that divides us into two sets of social and aesthetic roles. But the categories are really only aesthetic. Gender roles vary across cultures, and there is a wide range of ways a person could be intersex that are based in biology. This is the case even if TWU community members truly believe that “male” and “female” exist as watertight compartments and that the bible requires human beings to be cast into binary roles.
Actually there is a good tax analogy here: most people who have a basic understanding of investment think they know the difference between a dividend and a capital gain. A dividend is a distribution of (usually) retained earnings from a corporation, and a capital gain arises on the disposition of capital property for proceeds of disposition in excess of what a person paid for the property. We are at the point in the academic term where, in my Tax Policy course, we demolish the idea that these categories always apply or have much meaning at all in economic terms. The implication for tax policy is that we might not bother with different tax treatment for dividends and capital gains. Some jurisdictions do, in fact, impose a flat rate of tax on all returns to savings regardless of whether they arise in the form of capital gains, dividends or interest. This is known as a dual income tax, since a separate set of rates is applied to returns to labour.
(You can ignore this paragraph if you don’t get as excited about tax analogies as I do. A simple example of the problem is that, absent complex anti-avoidance rules, a parent company might try to strip out capital gains on shares of its subsidiary by having the subsidiary distribute tax-free intercorporate dividends up to the parent company. This reduces the fair market value that a third party would pay for shares of the subsidiary, so that the subsidiary could be sold and no capital gain would arise. We have complex “safe income” rules to prevent this kind of tax avoidance. The rules attempt to carve up what part of the surplus value of the subsidiary should be treated as dividends and what part should be treated as capital gains, but the limits of each category are not obvious. Even tax practitioners cannot predict how the CRA will interpret and apply the safe income rules. This is evidenced by the practice of distributing dividends in tranches to prevent the dividend distribution from being entirely re-characterized as a capital gain.)
All sorts of creative tax planning goes into arbitraging the different tax treatment of these two types of return on investment, by trying to characterize dividends as capital gains or vice versa. But it is all an enormous waste of very talented people’s abilities. Nothing of real value to the economy is produced by all the efforts of these brilliant minds shifting assets around on paper. (Some tax planners will tell you that tax arbitrage can be a deal maker in the M&A context, but query whether it is efficient for tax loopholes to subsidize transactions that would not occur if tax laws were applied as intended. And in any case, a lawyer’s fee is simply a transaction cost. It is the businesses that provide value to the economy.)
Similarly, nothing of value is produced by policing people’s gender identities or gender expression. Not only is a great deal of effort simply wasted on enforcing the gender binary, efforts that are not productive or useful to anyone, these efforts actually harm people who do not fit within the rigid boundaries of the gender binary. (I should note here that I do not think questioning the validity of sex and gender categories would make it impossible to protect women’s rights, or enforce broader protections for gender identity and expression. It is still possible to identify specific instances of discrimination on the basis of sex and gender and address them with constitutional and legislatively mandated remedies.)
The objections here might be: first, that policing the gender binary has value to TWU’s community because it accords with TWU’s interpretation of biblical requirements; and, second, that it is actually possible to determine who is a man and who is a woman because chromosomes give us the answer. These objections are related because the first objection is rendered meaningless by my response to the second. A person’s genotype and phenotype do not actually tell us which gender a person is. Only an individual can define their own gender. Many intersex people do identify strongly with a particular gender, including binary genders. Many others strongly identify as neither sex.
There is incredible variation, occurring naturally, in the configuration of human sex chromosomes and in the development of observable human sex characteristics. Not everyone has sex chromosomes that correspond with the XX or XY categories, or even has the same combination of sex chromosomes in every cell of their body. People whose genotype and/or phenotype do not correspond with social definitions of gender categories may refer to themselves as intersex. There is no agreement on who fits into the category of intersex, just as there is no universal agreement on which people should be categorized as male or female. See the Intersex Society of North America’s website.
Some intersex people might not even be aware of being intersex until later in life. Doctors may have surgically interfered with their genitals at birth (a practice that intersex advocates continue to oppose) and therefore the person may not become aware of their intersex difference until adulthood. Furthermore, some characteristics of being intersex simply do not develop until later in life. Shon Klose was recently in the news telling their story of discovering their intersex difference as a result of a physical exam that was an entry requirement for a nursing program. The harm that was done to Klose as a result of this discovery – harm Klose suffered solely on the basis of their intersex difference – is movingly documented in their news story. The news article also points out intersex individuals may be as common as individuals with red hair, according to some estimates. (I use “their” and “they” here because the English language is evolving to accommodate the use of “their” and “they” to refer to individuals who do not identify as either male or female, or identify as somewhere in between. This is how Shon Klose self-identifies).
I was hesitant, in writing this post, to ask what would happen to an individual who was discovered to be intersex as part of the admissions process at TWU. First, because I cannot predict how TWU would decide its Community Covenant applies to someone like Shon Klose. (though I will consider some hypotheticals). But mainly I hesitate because I find it deeply troubling that someone with a non-binary gender identity might even find it necessary to ask TWU’s administration whom they are allowed to marry and engage in consensual sex with. It should not be up to a university administration to make this decision for students and staff, especially when intersex individuals already experience such extreme forms of discrimination at the hands of medical professionals and by a close-minded society more generally.
If intersex individuals are anywhere near as common as individuals with red hair (approximately 1.7% of the population), it is quite probable that there are intersex individuals enrolled at TWU right now, since its annual enrollment is approximately 4,000 students. Even one of the lowest estimates of intersex differences occurring in 1 in 2,000 people would suggest that, even if there are no intersex individuals enrolled at TWU now, some of their over 18,000 alumni are intersex. And it is likely that TWU will have intersex students in the future. (We could also ask about staff and faculty but the question of how TWU will treat its students is closer to the heart of the debate about whether TWU’s law school should be accredited).
Some of these students may not even know about their own intersex difference, and may be performing a gender role that does not accord with society’s prescriptions for people with their genotype and/or phenotype. (There may not even be a prescription, whether biblical or societal). What if one of these students is in what appears to be a marriage of one man and one woman, but then discovers their biology does not fit neatly into either category? Is sexual intimacy within this marriage no longer permitted? Has the couple already, unknowingly, violated the Covenant because they had consensual sex within marriage, but one spouse is neither “male” nor “female”? Is this marriage invalid according to the Covenant? What if the intersex spouse decides to change their gender expression to accord more closely with their feelings about their newly discovered intersex difference? Is that individual required to divorce and re-marry someone of another (supposedly opposite) sex? Divorce is also strongly discouraged by TWU’s Community Covenant, which requires members, “within marriage [to] take every reasonable step to resolve conflict and avoid divorce”.
Again, I cannot claim I am able to predict what TWU’s interpretation of the bible would require here. That TWU would have any say in an intersex student’s sex life does offend my own sense of what kindness, compassion and mercy (all characteristics that TWU members must commit to cultivate) require in the treatment of individuals who are in a vulnerable social position.
I will ask instead how TWU would treat trans individuals who either identify as trans when they apply to study at TWU, or who begin to transition as students. I will be optimistic and hope that trans students would be treated with the kindness that is a basic requirement in all religions I am aware of. I will be optimistic and assume they would not be denied an education merely for being trans. I do balk at the question of what kinds of consensual sexual relationships TWU would prescribe (or prohibit) for trans individuals who decide to marry. I do not think it is even logically sound to prescribe or prohibit consensual sexual activity according to gender categories that are rendered absurd by the range of intersex difference that occurs naturally in the human population, and by the existence of individuals who cannot survive in the gender they were assigned at birth.
To all of this one might object: the examples of intersex and trans individuals represent outliers. One could argue: freedom of religion still permits TWU to require students who do conform to a socially prescribed gender to reserve sexual intimacy for heterosexual marriage (perhaps as that is described in, e.g., Ephesians 5:22-33). I will concede that most students will probably conform to the gender binary.
However, TWU must still tackle the practical question of how it will deal with trans and intersex students. In law we are concerned with justice and human rights, but in particular we are often concerned with defending the rights of members of marginalized minorities. TWU’s student body is large enough that it almost certainly includes, or will include, trans and intersex students who may not discover or disclose their identities until they are partway through a degree. (Query what would happen if a trans person living in their true gender was “outed” while studying at TWU. Some trans people are religious, and there are Christian communities in which trans people are accepted into membership and ministry).
Individuals who are intersex or trans obviously have no choice about their sex or gender. I could give TWU the benefit of the doubt and assume it would not consider being trans, or transitioning, as a prohibited “choice”. That attitude recently resulted in the death of Leelah Alcorn in the US and is surely the source of a great deal of suffering more generally. TWU does consider homosexual sex to be a choice that gays and lesbians could refrain from making. So perhaps TWU would also consider transition optional even though that position flies in the face of scholarly and medical literature on the subject
Even if TWU rejected transition as contrary to its Covenant, it could not take the position that intersex people have chosen to be intersex. If intersex individuals do not fit into either the role of a “man” or “woman” in a marriage, the result under TWU’s Covenant would be that these individuals could never have consensual sex. (Though, as I have noted above, some intersex individuals do identify strongly with a binary sex. Query whether these intersex individuals’ identities would be subject to approval by TWU.) This prohibition would be based solely on characteristics inherent in intersex people. There is no option for many intersex people to deny their biology (even if they could deny their gender identity) and enter into a marriage that fits the Covenant’s definition. Even if TWU takes the position that the gender binary can be enforced socially, there will always be individuals who, due to inherent characteristics, do not fit in either gender box.
TWU has held steadfast to compulsory heterosexuality, even though its law school could have been accredited in Nova Scotia absent legal proceedings if it had just dropped compulsory heterosexuality from its Covenant. But we can imagine that TWU might decide to make exceptions for intersex individuals on compassionate grounds, especially if an intersex person is already married when they discover their intersex difference. The argument that “TWU is not for everyone” and that people who don’t like the Covenant should simply study somewhere else does not hold for these students. They might discover they are intersex mid-degree, and there is a compelling case to be made that they should not be expelled or forced to divorce as a result. But if sex within an intersex person’s marriage is permitted, it follows that gays and lesbians should not be excluded from marriage either.
Neither intersex people nor gays and lesbians have any choice about being LGBTQI+. So what would justify treating some sexual minorities, some of whom have no choice but to live outside biblically prescribed gender roles, with greater human dignity than others? Suggesting that gays and lesbians could simply go elsewhere, or enter into straight marriages, denies them either education or employment or a part of their humanity – a part of intersex people’s humanity that would be allowed even though it violated the Covenant. If TWU would solve this practical problem by making exceptions for intersex people and not for gays and lesbians, there would be an inconsistency in the application of its moral code. TWU would be forced to concede that the sanctity of marriage does not always arise between one man and one woman.
How will TWU resolve these conflicts? Should TWU require prospective students to undergo a physical examination and genetic test prior to acceptance at TWU? Should prospective students be made to swear an oath that they are not, and never will identify as, trans in order to prevent possible retroactive violation of the sanctity of marriage? Obviously these investigations into students’ gender and sex would constitute unacceptable invasions of privacy. But so does TWU’s interference in prescribing the gender of individuals having sex consensually behind closed doors.
I will not get into the legal details of the balancing exercises the courts have done with the Charter rights at stake in the “irreducible conflict”. However, I will suggest that the courts, including the Supreme Court of Canada, have failed to account for enough of the letters in LGBTQI+ when balancing competing rights. There is even room here for someone to do an analysis of how bisexual, questioning and genderfluid people (among others) would be impacted by the Covenant, and a deeper analysis of how trans people weigh in. But in particular the prevalence of intersex people in the population, even if we assume the lowest estimates to be correct, offers compelling arguments on the LGBTQI+ side of the scale.
No one can argue that intersex people have a choice about their intersex status. (It is rare to hear anyone argue that being gay or lesbian is a choice, but it is reasonable to assume that attitude still exists, maybe even among jurists). And, importantly, no one can argue that intersex people can just decide to study or work elsewhere, because intersex people might discover their intersex status while studying or working at TWU.
It is my hope that the next time the courts engage in the balancing of Charter rights at TWU, they at least consider the serious harm that TWU’s Covenant does to intersex people. Intersex people are already so invisible in our society that to have a university policy that does not contemplate their existence is, I think, a harm in itself. It is time for us to take seriously what gender-based prohibitions on sex do to harm the people behind the rest of the letters in “LGBTQI+”, who are so often ignored.
Drawing a Line Between TWU and Other Religious Institutions and Charities
The second issue is whether a line can be drawn, on a principled basis, between TWU and other religious institutions that espouse values restricting sexual intimacy to heterosexual relations within marriage. The answer is “yes”; there is already a large body of charity jurisprudence that makes this kind of distinction. Disputes that cannot be resolved between a taxpayer and the CRA go to the courts for resolution. As discussed in my earlier post, it is a very old principle in charity law that an organization cannot be said to be charitable if it engages in activities contrary to public policy. There is a difference between holding harmful beliefs and excluding people from higher education, not to mention that TWU is actively pursuing its right to exclude gay and lesbian people from a higher education through the media and the courts.
Revoking TWU’s charitable tax status for pursuing activities contrary to public policy would not set a precedent that would revoke the charitable tax status of all religious institutions supporting heterosexual marriage. The ordinary tests in in the Income Tax Act and in charity law jurisprudence would apply. Religious charities should have their charitable tax status revoked if more than 10% of their expenditures are on political activities (this is a simplification, see my previous post for full detail), or if they are pursuing activities contrary to public policy, as defined by the courts through hundreds of years of jurisprudence imported from the UK. It is important to note that the balancing of rights that happens in Charter litigation is not applicable to the legal test of whether an institution should lose charitable tax status.
But even if more religious institutions that actively promote intolerance were subject to audit, the broad audit would not be troubling when the tax benefits received by charities are understood as paid for by the public, including by LGBTQI+ individuals. It is the CRA’s responsibility to administer and enforce most tax laws in Canada. This responsibility includes ensuring that charities are not misusing public funds for political purposes or for activities contrary to public policy.
I point out again that charitable tax credits are considered tax expenditures. This means the federal government accounts for revenue foregone in the form of reductions to the tax bills of those entitled to the credits. This is equivalent to direct government spending: essentially, the government underwrites the charitable sector by giving tax kickbacks to donors. This increases the donors’ ability and willingness to donate, and therefore directly benefits registered charities like TWU. For a more detailed explanation of the tax expenditure concept, see my previous post. In addition to tax credits for donors, registered charities like TWU receive significant public subsidies in the form of exemptions from income tax. TWU is also exempt from property taxes that would otherwise be levied under multiple provincial statutes per section 14 of BC’s Trinity Western University Foundation Act, SBC 1989, c 82. Other taxpayers and owners of real property in BC must make up this shortfall, and therefore subsidize TWU to the extent of the tax it would otherwise pay.
Religious freedom does not extend a religious right to receive funding from the entire taxpaying public. Denying a religious organization access to public funds, in the form of tax exemptions and charitable tax credits for donors, can hardly be characterized as a curtailment of freedom of religion. Revoking charitable tax status would simply remove the requirement on all other taxpayers to subsidize the religious organization. That is a fair result if the religious organization is actively pursuing an agenda to deny LGBTQI+ people access to legal education. If TWU retains its charitable tax status, LGBTQI+ taxpayers will continue be forced to subsidize the only law school in Canada that explicitly discriminates against sexual minorities. In fact, LGBTQI+ taxpayers are currently underwriting TWU’s legal fees in defending its right to exclude LGBTQI+ people from accessing a legal education at TWU.
A further objection was raised that the reasons I am calling for the revocation of TWU’s charitable status could apply to any charity that discriminates on a Charter-protected ground. That is accurate, but not problematic. Law professors in the US have identified a principle in US law, similar to our own “contrary to public policy” test, that should be used to revoke the tax-exempt status of racist fraternities. But the US faces the same problem we do: the IRS, like the CRA, cannot audit every organization claiming tax benefits.
The example given in the Canadian context was that the Vancouver Rape Relief Society, and other women’s shelters that discriminate against trans women on the basis of gender, could lose their charitable tax status. I think the comment I already made on this point is worth repeating here, since trans women are subjected to some of the most egregious forms of discrimination in our society. This has been demonstrated in Canada most recently by Senator Plett’s amendments to Bill C-279, so that in its current form trans people could be effectively banned from using public washrooms. It should be noted that these amendments are specifically intended to target trans women, not trans men. Others have pointed out, more eloquently than I could, the absurdity of these amendments, and that they are evidence of a particularly vicious form of misogyny – transmisogyny – that it is apparently acceptable to openly promote in our highest levels of government.
Here are my comments on the Vancouver Rape Relief Society:
I do think the Vancouver Rape Relief Society should lose its charitable tax status. To deny a trans woman a volunteer position in her own community, solely on the basis of gender, is a prohibited form of discrimination under the relevant human rights legislation. The BC Court of Appeal said as much in Vancouver Rape Relief Society v Nixon, 2005 BCCA 601. It simply found it could not grant Ms. Nixon relief because BC exempts non-profit organizations from the provisions that would otherwise protect her (para. 9). Maybe there would be some justice for Ms. Nixon, and all trans women, if trans people were no longer forced to subsidize the Vancouver Rape Relief Society, and its donors, with their tax dollars. So if anyone in the CRA is reading this, I hope they will also consider this comment an open letter requesting an audit of the Vancouver Rape Relief Society on the basis that it is engaging in activities contrary to public policy.
Trans women are some of the most vulnerable people in our society, since they exist at the intersection of transphobia and misogyny. In the US, the trans community lost seven trans women to murder in the first seven weeks of 2015 alone. Six of these murdered women were women of colour (see here). The prevalence of violence against trans women, particularly trans women of colour, is heartbreaking. These losses make it particularly sad, and bitterly ironic, that trans women are so often excluded from women’s shelters.
Personally, I will only donate to women’s shelters that have an explicit policy of welcoming trans women. I have this shelter’s page bookmarked in my laptop’s browser for that reason.
I would ask the reader to consider the consequences of denying shelter to a trans woman who is fleeing from violence.
TWU’s History of Exploiting Canada’s Charitable Tax Credit Regime
In the early 2000s, TWU was involved in an aggressive charitable tax credit scheme to give parents of TWU students government-funded kickbacks on tuition. (Some of the payments for which receipts were illegally issued were made by grandparents and family friends of TWU students. For simplicity I will refer to payments made by, and receipts issued to, parents or family). The scheme worked by disguising tuition payments as charitable donations by funneling them through a separate registered charity (though funds were comingled) and back to the students as “bursaries”. Students were instructed to solicit “donations” that would be made out not to TWU, but to the National Foundation for Christian Leadership (NFCL). The NFCL also funded a handful of other Christian colleges and seminaries, though the tax disputes that went through the courts involved only “donors” who contributed on behalf of students of TWU. Students received a fundraising tip sheet that included suggesting to potential payors (typically their parents), “that God does not want to see students graduate with huge burdensome student loans” (Coleman v Canada, 2010 TCC 109 at para 3. Coleman was affirmed in Ballard v Canada, 2011 FCA 82, leave to appeal refused,  SCCA No 196. Note that throughout I have used quotation marks around terms the taxpayers used for the scheme, where those words do not reflect the economic reality of the situation, as this was the convention used in Ballard).
On paper, the NFCL specified that donations raised by a particular student could not be designated to reduce that particular student’s tuition. However, letters sent to students and their parents stipulated how much the students would have to raise in donations to cover 100% of their tuition and other costs – the NFCL’s fundraising material represented that raising 125% of the student’s total costs would entitle him or her to the maximum bursary amount (Coleman at para 3). The NFCL’s materials also represented that “donors” could expect to receive charitable donation tax credits covering up to 45% of payments made to the NFCL (Coleman at para 3).
Participating students received a “bursary” of 80-100% of the lesser of the value of their tuition and other costs or the value of the parents’ payments to NFCL (Coleman at paras 4 and 35). Only 5-10% of students did not receive a benefit in return for the payment they had solicited; however, in each of those cases the student was not granted a benefit because they failed to meet the criteria to qualify for funds (Ballard at para 12). These criteria set a fairly low bar: students had to, for example, pay a fee to NFCL of $25 per semester, enroll in a minimum number of courses, and maintain a cumulative grade average over 63% (Coleman at para 3).
The Tax Court of Canada, affirmed by the Federal Court of Appeal, found that these donations to the NFCL could not be characterized as “gifts” under the common law as it then applied under the relevant provisions of the Income Tax Act dealing with charitable donation tax credits (Income Tax Act s. 118.1, Ballard at para 5).
(Note that donations made after December 20, 2002 are subject to statutory rules that prevent a gift from being vitiated if the donor receives an “advantage” of 80% or less of the value of the donation. Instead, the value of the gift that can be claimed for the purposes of applying the charitable tax credit is reduced by the value of an “advantage” received in return for the donation. See s. 248(30)-(32). All the “donations” in issue in Coleman were either made prior to December 21, 2002, or the “bursary” provided to a student was well in excess of 80% of the “donation”. Therefore the common law definition of “gift” was applied to all “donations”, per s. 248(30)).
To paraphrase, a “gift” at common law occurs when:
(Coleman at para 36, citing Friedberg v Canada,  FCJ No 1255).
Coleman turned on the third branch of the test. A benefit received by a donor vitiates a gift when the benefit has a sufficient link to the donation. A donor who expects a benefit in return for a donation cannot be said to have the requisite donative intent for a “gift” to be made out under common law. In Coleman, the “donors” expected a benefit in the form of a “bursary” for the TWU student who solicited the donation. Justice Campbell Miller of the Tax Court of Canada framed this expectation as follows:
What is disturbing is that the objective evidence points so very clearly to an understanding, indeed a knowledge, at the time of donation, that 80 to 100% of monies they donated would go to cover the education cost of those students who solicited the funds – primarily their offspring (Coleman, para 35).
The Federal Court of Appeal, in Ballard, upheld the decision of the Tax Court. The FCA distinguished its reasoning only on the basis that Justice Campbell Miller’s finding that there was no uncertainty about the receipt of “bursaries” was “not entirely accurate” (Ballard at para 13). However, this inaccuracy did not rise to the level of palpable and overriding error, since on the facts the “donors” before the court knew the students were within the criteria for receipt of their “bursaries”. Therefore these “donors” were certain of receipt (Ballard, paras 13 and 24). The decision of the Tax Court dismissing the appeals of the “donors” was thus upheld, such that the denial of their charitable tax credits was maintained.
Today, the NFCL is still a registered charity. However, it has received no donations in any of its fiscal periods reported on the CRA’s website back to 2010. Its only expenses in each fiscal period were professional fees under $300. This is unsurprising, since the tax credit scheme the NFCL was used for has been defunct since the Tax Court and Federal Court of Appeal’s decisions in Coleman and Ballard.
Determining that TWU’s tax credit scheme was invalid involved a different legal analysis from the one that would determine TWU’s ineligibility for charitable tax status. However, TWU’s willingness to engage in such a blatantly abusive tax credit scheme speaks to the institution’s lack of respect for the taxpaying public. It is particularly egregious that TWU would characterize tuition payments as charitable donations, because nothing about this scheme disentitled students of TWU to tuition tax credits. The scheme allowed parents and students to double-dip, since TWU’s tuition gave rise to both a charitable tax credit and a tuition tax credit.
TWU has unusually high tuition fees because of its supposed lack of public funding. In 2011, tuition fees were between $16,000 and $20,000 per year. (TWU calculates its tuition according to credit hours). There is no limit in s. 118.5 of the Income Tax Act, the section that implements the tuition tax credit, on the quantum of fees eligible for the credit. This means that TWU students are subsidized by tuition tax credits on the entire amount of their tuition. TWU fees are roughly 3 times greater than fees at other public universities in Canada. Part of the tax value of tuition amounts can be transferred to parents in the year the tuition expense is incurred. Remaining credits are carried forward to be used to offset future taxes. The credit is worth 15% of the face value of tuition fees at the federal level alone. BC adds an additional 5.05%. (Provinces calculate provincial personal credits at different rates).
The tuition tax credit effectively provides a government subsidy of roughly 20% of the full amount of TWU’s tuition fees in BC. This subsidy for TWU’s tuition continues today. TWU’s aggressive tax planning, impugned in Coleman and Ballard, just added another layer of charitable tax credits to which “donors” to the NFCL were not entitled to in the first place.
Recall that TWU claims it is a private university in order to maintain its exemption from the Charter protections for gay lesbian individuals. Trinity Western University v British Columbia College of Teachers, 2001 SCC 31 [TWU v BCCT] was released by the Supreme Court in 2001. The Coleman and Ballard decisions deal with “donations” made in 2002 and 2003. The facts in Coleman tell us that TWU was issuing these questionable charitable receipts for what were, in substance, tuition payments at least as early as 2001 (Coleman, para 16). Another source refers to the scheme being in effect since at least 2000, and an estimated total of $12 million in tax receipts issued under the scheme. I should emphasize again that the NFCL’s own promotional materials advertised that the scheme could reduce tuition costs by up to 45% (Coleman para 3). In other words, TWU and parents of TWU students knew the scheme constituted a tax subsidy to the tune of almost half of their students’ tuition, and the scheme was in fact advertised to parents that way. These receipts funded TWU’s students’ tuition directly out of public tax revenue.
Every public university in Canada is characterized as public because the government subsidizes part of students’ tuition. Yet TWU, an institution that claimed to be private when BCCT v TWU went before the Supreme Court, advertised at the same time that up to 45% of its students’ tuition could be paid for by the government for the period throughout which invalid charitable tax receipts were issued. This subsidy existed separate and apart from the subsidies TWU continues to receive from the taxpaying public through its exemptions from income and property tax, from the ability of its students to claim tuition tax credits, and its ability to issue charitable tax receipts for donations unrelated to tuition.
We can only hope that the CRA managed to collect all the inappropriately claimed tax benefits received by “donors” to the NFCL, with interest. Even if the CRA was able to recoup all the tax benefits received as a result of TWU’s exploitative tax scheme, it would have recouped those benefits from the parents of TWU students, not from TWU. Note that Coleman and Ballard, the parties reassessed by the CRA, were individual taxpayers who had made payments to the NFCL. The windfall benefit to TWU, that students were better able to afford TWU’s high tuition rates because of an illegitimate tax subsidy to students’ families, has been retained.
TWU’s willingness to exploit the Canadian tax system through aggressive (and ultimately unsound) tax planning further undermines the claim it made before the Supreme Court of Canada that it is a private institution. Aggressive tax planning made TWU better off at the expense of all Canadian taxpayers. Meanwhile the “donors” to the NFCL bore the risk of reassessment by the CRA.
In my view, the claim that TWU is a private institution is every bit as artificial as was TWU’s scheme to issue charitable tax receipts for tuition payments. Its claim that it is a charitable organization is on shaky ground, at best, as long as it discriminates against LGBTQI+ people, contrary to public policy. (See my previous post for an explanation of charity law as it applies to TWU’s charitable tax status). As discussed above, I strongly suggest the courts consider the impact of the Covenant on trans and intersex, as well as lesbian and gay students the next time they have the opportunity to comment on the balance of LGBTQI+ rights with religious freedom.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Jennifer Cox
Conference Commented On: Igniting a Spark, Canadian Association of Environmental Law Societies 2015 Conference, Calgary
While many students travelled or relaxed during February’s reading week, I was fortunate enough to be a part of a group of second and first year students from the University of Calgary’s Environmental Law Society (ELS) who put together the 3rd Annual Canadian Association of Environmental Law Societies (CAELS) Conference. The two-day conference was attended by over 100 delegates from all across Canada and covered a wide array of topics with a focus on energy law.
CAELS is a Canada-wide and student-run association which gives Canadian law students a forum to discuss issues in environmental law. The conference, first held in 2013, is now a major part of this forum. ELS members attended the first two years of the CAELS conference, then held in Ottawa. We were impressed by the quality of the speakers and the discussions at the conference, and started talking about what a Calgary-led CAELS conference could look like. We wanted to bring students excited about environmental, natural resource, and energy law to Calgary to gain exposure to the city’s wealth of knowledge in that area. Led by CAELS Coordinator and second year University of Calgary law student Scott Allen, we were able to achieve that goal.
We chose the theme of “Igniting a Spark” for several reasons. First, we wanted to focus on energy law, and felt that the idea of “igniting a spark” would help to capture that idea. Second, we wanted to “ignite a spark” in every delegate.
The conference attracted delegates from across the country, including Fredericton, Victoria, Yellowknife, and everywhere in between. Approximately 70% of these attendees were students and articling students, representing eight different law schools and four non-law schools. The other 30% of delegates came from the Calgary bar, government, industry, members of First Nations, public interest groups, and a variety of other professions. Together, these varied perspectives turned the conference into the stimulating discussion we wanted it to be.
We also had incredible speakers from Alberta and across the country. They spoke on topics such as developing Liquefied Natural Gas in British Columbia, improving the pipeline approval process, assessing the effects of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52, and recognizing the importance of aboriginal consultation. The full program, including information on each speaker, can be found here.
This conference would not have been possible without the help of many. Our sponsors from the Alberta Law Foundation and the Shell Experiential Energy Learning Program provided us with the funds to turn our idea into a successful reality. We also received extensive help from the faculty and staff at the Faculty of Law. Most notably, Assistant Professor Martin Olszynski spent hours helping us brainstorm ideas and organizing logistics, and he participated on two different panels, first as a speaker and then as a moderator. Without his and other faculty members’ help, the conference would not have obtained the breadth and depth that it did.
For more information regarding the conference, or to provide feedback about the conference, please email us at email@example.com.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Shaun Fluker
PDF Version: Where Are We Going on Standard of Review in Alberta?
Case Commented On: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85
In Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City) the Court of Appeal has upheld an earlier chambers decision of Associate Chief Justice Rooke to set aside an Edmonton assessment review board decision. This ought to have been a fairly routine administrative law case, however the Court of Appeal chose to engage in the fundamentals of judicial review and purports to add a new exception to the presumption of deference I wrote about early in January 2015 on ABlawg (see Some Thoughts on the Presumption of Deference under the Dunsmuir Framework on Substantive Judicial Review). The Court of Appeal has perhaps also significantly altered the relationship between the superior courts and administrative tribunals in Alberta. I say this because on an initial glance, it is difficult to reconcile the reasoning of the Court of Appeal in this judgment with recent jurisprudence from the Supreme Court of Canada on standard of review generally and the jurisprudence in Alberta which has developed in relation to the Edmonton assessment review board itself. Administrative law scholars and practitioners will no doubt be interested to watch how this unfolds in Alberta.
In Some Thoughts on the Presumption of Deference I gave a brief overview of the fundamentals at issue in judicial review, and I won’t reiterate those at length here. Simply put, a reviewing court must arrive at its conclusion on whether to set aside a tribunal decision taking into account the rule of law which demands a measure of rigor and accountability by administrative tribunals to legal principles, but the court must also respect the intention of the legislature to empower a statutory tribunal to make legal determinations for the area in question. The standard of review chosen by the court speaks largely to which of these considerations it favours in a given case: correctness suggests more concern with the rule of law and reasonableness suggests a court deferential to legislative intent. This is proving to be a difficult exercise, as evidenced by the number of iterations the Supreme Court has given on the standard of review problem over the last couple of decades.
The administrative law issue in this case concerns the Edmonton assessment review board, a statutory tribunal empowered by Part 11 of the Municipal Government Act, RSA 2000, c M-26 to hear complaints from city taxpayers on their property assessments, typically arguing the assessed value is too high and should be reduced by the Board. Municipalities in Alberta assess property values every calendar year, and the assessed value for a property determines the amount of property tax payable by the owner to the municipality in a calendar year. In this case the Board had decided it had the authority under the Municipal Government Act to not only dismiss a complaint seeking a reduction in assessed value but also to increase the assessed valued of the complainant’s property as requested by the City during the hearing. The complainant obtained leave to appeal the Board’s decision to the Court of Queen’s Bench under section 470 of the Municipal Government Act, which provides for a right of appeal on questions of law or jurisdiction with leave of the Court. The Court of Queen’s Bench had earlier granted leave to Edmonton to appeal, and in hearing the merits of the appeal Justice Rooke concluded the applicable standard to review the Board’s decision was correctness on the basis that the Board’s determination that it could increase assessed property value was a true question of jurisdiction – one of the established exceptions to the presumption of deference owed by a reviewing court to a statutory tribunal interpreting its home legislation (see Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2013 ABQB 526 at paras 18-31). Justice Rooke applied the correctness standard to conclude the Municipal Government Act did not provide the Board with jurisdiction to increase the assessed value of a complainant’s property at the request of the City and thus set aside the Board’s decision (at paras 43-53).
The Court of Appeal dismisses Edmonton’s appeal, and thereby upholds Justice Rooke’s decision to set aside the Board’s decision. The Court of Appeal likewise concludes the applicable standard of review to assess the Board’s decision in this case is correctness. Given that the Court of Appeal agreed with Justice Rooke on the applicable standard of review, it isn’t clear to me why the Court did not also adopt the jurisdictional analysis provided by Justice Rooke on standard of review – which seems to fit comfortably within the articulated scope of the ‘true question of jurisdiction’ exception to the presumption of deference (as provided in the leading case Dunsmuir v New Brunswick, 2008 SCC 9 at para 59).
Instead, the Court of Appeal purports to carve out a surprising new exception to the presumption of deference owed to administrative tribunals. In the context of this case the Court rules that the statutory right of appeal set out in section 470 of the Municipal Government Act demonstrates a legislative intent for an intrusive judicial role into municipal property tax assessment, and reasons more generally as follows (at para 24):
Where the Legislature has specifically provided for a right of appeal to the ordinary courts, the Legislature clearly intended that the administrative decision maker make the initial decision, subject to review by the court. As pointed out in Pushpanathan . . . if a correctness review is not applied, this legislative scheme makes little sense. The presence of a statutory right of appeal may not invariably signal a correctness standard of review, but it is clearly enough to displace any presumption that reasonableness applies.
Some readers will observe that many statutes in Alberta create an administrative regime and include a right of appeal to the superior courts. The role of the superior courts to review statutory decisions does not rely on this right of appeal because of the inherent jurisdiction of superior courts to judicially review the exercise of statutory powers. Nonetheless it is common for modern legislation enacted by Alberta and other jurisdictions to provide for a right of appeal from statutory tribunals. If these provisions are viewed as an invitation for judicial scrutiny – as the Court seems to suggest here – then the presumption of deference has just been lost for many administrative tribunals in Alberta. This includes the Alberta Energy Regulator and the Alberta Utilities Commission, whose decisions on energy or power transmission project approvals are subject to a statutory right of appeal in section 45 of the Responsible Energy Development Act, SA 2012 c R-17.3 and section 29 of the Alberta Utilities Commission Act, SA 2007 c A-37.2 respectively. This ruling that the presence of a statutory right of appeal rebuts the presumption of deference comes as a real surprise to me.
In a similar vein, the Court of Appeal makes short work of the recent Supreme Court of Canada decisions which have that found statutory tribunals have a measure of expertise in providing interpretations of their home legislation and should presumptively be accorded deference in this regard (I reference several of these decisions in Some Thoughts on the Presumption of Deference). The Court of Appeal concludes that the Edmonton Assessment Review Board does not have expertise relative to the superior courts in interpreting the Municipal Government Act (at para 28):
…[T]he relative expertise of the tribunal and the courts is in favour of a correctness standard of review. The statutory scheme allows a taxpayer to complain to the assessment review board. That board’s particular expertise and mandate is to review issues relating to the categorization and value of property. It must necessarily interpret the statutes and regulations which cover taxation, but statutory interpretation is not the core of its expertise. The “expertise” of the tribunal is not fully engaged here. In recognition of that, the statute allows appeals on questions of law, with leave. The statute recognizes the expertise of the assessment review boards, but it also recognizes the expertise of the superior courts in the interpretation of taxing statutes. The Legislature has decided not to choose between one kind of expertise or the other; rather the Legislature has created a regime which gains the benefit of both.
The Court reaches this conclusion making no reference to the Alberta case law that suggests the Board is an expert on interpreting its home legislation (see e.g. Shepherd’s Care Foundation v Edmonton (City), 2014 ABQB 733 at paras 35-43; Edmonton (City) v Edmonton Composite Assessment Review Board, 2012 ABQB 439 at para 15). This in itself is problematic because the ability to rely on existing precedent to determine the applicable standard of review was arguably the most important contribution of Dunsmuir (at para 62) towards simplifying the standard of review analysis in Canadian administrative law. Nor does the Court engage with the jurisprudence on how to decipher the expertise of a statutory tribunal relative to the courts (see e.g. Canada (Director of Research and Investigation) v Southam,  1 SCR 748, 1997 CanLII 385 at paras 50-53 and Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at paras 28, 29).
In Some Thoughts on the Presumption of Deference I suggested that the blanket use of a presumption of deference risks overlooking the context or subtle wrinkles that arise in the exercise of statutory power. I also observed the concerns set out in concurring opinions at the Supreme Court of Canada which caution against a blanket presumption of deference towards statutory interpretation by administrative tribunals of their home legislation and assert the need for deference to rest on a more principled foundation like demonstrated expertise or familiarity of the tribunal with that legislation. One might suggest the Court of Appeal’s findings on expertise here are grounded in these concurring opinions, but we are unfortunately left to speculate in that regard because no explicit connection is made with these opinions, and the Court likewise makes no attempt to reconcile its reasons with earlier decisions of the Court of Queen’s Bench that have observed the Board as an expert in interpreting the Municipal Government Act.
The Court also notes that there are many assessment review boards operating under the Municipal Government Act – since each municipality must have one – and accordingly correctness is the appropriate standard of review to ensure consistency in the interpretation of provisions in the Act (at para 30). I remark on the tension between the need for consistency in administrative tribunal decision-making and the fact that stare decisis does not apply to administrative tribunals in Some Thoughts on the Presumption of Deference. Addressing this tension seems to be a growing problem in administrative law and, in my view, is worthy of more judicial scrutiny. Here the Court of Appeal cites Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, as authority for the proposition that where there are multiple tribunals applying the same statute, and there is a right of appeal on issues of general importance, the standard of review is correctness. However Rogers Communication involved shared authority between an administrative tribunal and the superior courts, and Justice Rothstein explicitly stated that the decision concerns situations where the statutory scheme provides for the possibility that both a tribunal and a court may decide the same legal question at first instance (at para 19). So it isn’t clear to me how Rogers Communication is good authority for establishing the correctness standard here where the issue is determinations by multiple tribunals, not the courts.
The issues of consistency in how administrative tribunals interpret legislation and whether judicial deference must rest on demonstrated – rather than presumptive – expertise are some of the more difficult issues facing substantive judicial review in administrative law post-Dunsmuir. Thus I would like to have seen more than just a few paragraphs of analysis from the Court on these points and how they support the standard of correctness in this case. I also think the Court of Appeal should have explained how the Capilano decision reconciles with recent jurisprudence from the Supreme Court on standard of review generally and the jurisprudence in Alberta which has developed in relation to the Edmonton assessment review board itself. In the absence of that analysis I think Capilano just adds (or returns us) to the confusion in regards to the standard of review in Alberta administrative law.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg
By: Linda McKay-Panos
It is a well-known principle that one cannot contract out of one’s human rights. For example, one cannot contract or agree to be subjected to sexual harassment in the workplace in the future. This does not, however, prevent parties from entering into settlement agreements after a human rights situation has occurred. Respondents and complainants settling claims under the Alberta Human Rights Act, RSA 2000 c A-25.5 (AHRA) agree that no further human rights complaints will be made about the current circumstances, in exchange for receiving money or other remedy. There is a long line of case law in which these settlement agreements have been upheld by the Alberta Human Rights Tribunal or the courts. The leading case that sets out the requirements for upholding a settlement agreement is Chow v Mobil Oil, 1989 ABQB 1026. The Buterman decisions demonstrate some of the access to justice challenges faced by the Alberta Human Rights Commission (AHRC) and the parties when the settlement agreement is at issue.
Jan Buterman is the president of the Trans Equality Society of Alberta (TESA). He wants to encourage all Canadians, including those who are transgender, to understand that transgender Canadians have rights. Buterman is currently working on a campaign to encourage the Senate to withdraw an amendment to a trans*-rights bill that would clarify that “everyone” and “every individual” referenced in the Canadian Charter of Rights and Freedoms include transgender people.
The facts giving rise to the Buterman decisions occurred when Jan Buterman was a substitute teacher with the Greater St. Alberta Catholic Regional Division No. 29 (“School Division”) from March to October 2008. On October 1, 2009, he complained to the AHRC that he was discriminated against in the area of employment on the grounds of gender, mental and physical disability. Buterman claimed that when he advised the School Division that he was diagnosed with gender identity disorder, and that he intended to undergo hormone therapy and sexual reassignment surgery, the School Division terminated him by removing his name from the substitute teacher roster. The School Division denied that it had discriminated against Buterman, arguing that it would be undue hardship to maintain Buterman’s employment because gender reassignment is inconsistent with the teachings of the Catholic Church.
In 2013, the School Division applied to the Court of Queen’s Bench for judicial review of the Chief Commissioner’s decision to refer the matter to a Tribunal. On a preliminary application, Madam Justice Sheila Greckol refused the Director of the Commission’s application to strike out the School Division’s application for judicial review because it was brought too late (see: Greater St. Albert Regional School Division, District No. 734 v Buterman, 2013 ABQB 485). Next, the School Division applied for judicial review of the decision of the Chief Commissioner to refer the matter to a Tribunal hearing and his decision not to refer the matter back to the Director of the Human Rights Commission for settlement purposes (see: Greater St. Albert Regional School Division District No. 734 v Buterman, 2014 ABQB 14). Madam Justice Greckol held that the Director reasonably concluded that he did not have the statutory authority to decide settlement issues at the point in the process he was requested to do so, and that the Chief Commissioner reasonably decided he did not have the authority to order the Director to decide the settlement issues. In dismissing the application for judicial review of these decisions and the decision of the Chief Commissioner to order a Tribunal hearing, Justice Greckol noted that the School Division’s activities had served only to delay a hearing on the merits (at para 183). She went on to state (at para 184):
Human rights process is not only for the lion-hearted and well-heeled conversant with litigation, but also for the timorous and impecunious – for all Albertans. The expeditious resolution of complaints becomes an issue of access to justice; justice delayed is justice denied since true, restorative remedies become increasingly elusive by effluxion of time.
The first sign that the Buterman decisions referred to in this post would be challenging was the appointment of a three-member Tribunal. In most cases, only one member sits on the Tribunal. In the past three years, I could find only one other reported case where the Tribunal consisted of more than one person. The second sign that these cases were challenging is that the three-member panel released majority (William J. Johnson, Q.C., Tribunal Chair and Joanne Archibald, B.A., LL.B., Tribunal Member) and dissenting (Sharon Lindgren-Hewlett, B.Comm., LL.B.) reasons for decision.
Buterman, 2014 Human Rights Tribunal Decision
The 2014 Buterman decision addressed whether the AHRC had lost jurisdiction over the case because of a settlement agreement between the parties. After the complaint was filed in 2009, the parties entered into a period of negotiations. On October 2, 2009, Mr. Feehan, counsel for the School Division, sent an offer of settlement to Mr. Michaud, who was then counsel for Buterman. The settlement proposed that in exchange for payment of $78,000, Buterman would withdraw his complaint and promise not to commence any further human rights complaint or legal processes arising out of the circumstances from which Buterman was removed from the substitute-teaching list, and would sign standard Release and Confidentiality clauses (Buterman, 2014, at para 13).
On November 12, 2009, Michaud replied, indicating that Buterman would not accept the offer. For the next several months, there was communication between the parties in effort to settle the matter. On September 8, 2010, Michaud wrote to Feehan expressing a desire to know whether the original offer of settlement was still open, and that if it was, Buterman was prepared to accept the offer and they would discuss the details of the settlement (at paras 14-16).
The Tribunal provides an excerpt of the letter (at para 16):
… Mr. Buterman has instructed us to notify you that he is willing to accept the proposal put forward by GSACRD on October 2, 2009 according to which GSACRD would make a conciliation payment to Mr. Buterman in the amount of $78,000. In view of GSACRD’s commitment to finding a fair and reasonable resolution, we expect that this offer is still open for acceptance notwithstanding Mr. Buterman’s earlier rejection of the offer. (emphasis added)
Feehan responded that the offer had always been open and concluded the letter with practical details such as the provision of a cheque for $78,000 in trust and the withdrawal of the human rights complaint (at para 18). There were a number of letters exchanged between Feehan and Michaud over the next several months addressing the form and requirement of three documents: withdrawal of complaint; a covenant (usually to maintain confidentiality); and a release. On January 4, 2011, Feehan wrote to Michaud and enclosed a trust cheque for $78,000, together with a request to receive the amended three documents (at para 21). On January 7, 2011, Michaud wrote to Feehan, returning the cheque and indicating there was an issue with respect to the settlement documentation that they wanted to discuss with Feehan. Until that agreement had been reached, Buterman was not prepared to accept the settlement funds (at para 22).
On March 18, 2011, Michaud wrote to Feehan to advise that he no longer represented Buterman. On April 7, 2011, Feehan wrote Buterman, indicating that the complaint had been conclusively settled with the previous counsel in 2010. Feehan explained that his firm held the cheque in trust, and attached the settlement documents to be signed and returned (at para 14). The School Division first became aware that Buterman did not want to proceed with the settlement when the media reported that he wanted to proceed to a hearing on the merits of the case (at para 25).
The three-member Tribunal was asked to determine whether a settlement had been reached between the parties on September 8, 2010. The issue then became one of contract law; whether there was offer and acceptance and what might be the impact of the parties’ failure to conclude and execute the settlement documentation. The letter of October 2, 2009 was considered to be an offer to pay a sum of money in exchange for Buterman’s withdrawal of the complaint, a promise not to pursue legal process related to his removal from the substitute teaching list, and an agreement to keep the matter confidential (at paras 28, 29).
The issue was whether the offer remained open for acceptance, even after Buterman rejected it in October, 2009. Buterman argued that the letter of September 8, 2010 was merely an inquiry about whether the money was still available and that he intended to work on other elements that might be part of an eventual settlement. The School Division argued that the exchange of correspondence between the lawyers on September 8, 2010 indicated that the offer had been accepted.
A majority of the Tribunal concluded that the offer of October 2, 2009, remained open and available for acceptance when Michaud sent the letter of September 8, 2010. The majority also concluded that the language of the letters exchanged between the lawyers indicated that the offer indeed remained available for acceptance (e.g., “willing to accept”; and “we expect that this offer is still open for acceptance notwithstanding Mr. Buterman’s earlier rejection of the offer”) (at paras 43-44). Thus, the letters exchanged satisfied the requirements of offer and acceptance such that the parties had entered into a settlement agreement on September 8, 2010 (at para 44).
While parties may reach a settlement before they complete the settlement documentation, if the terms of the documentation are significantly altered or added to, this may negate the agreement (Gilles Caron v City of Edmonton, 2014 AHRC 2 (Caron)). In Buterman, the majority was convinced that there was no evidence of addition of terms to which the parties had not previously agreed, and thus Caron was distinguished (at paras 50-1).
Based on the evidence that was before the Tribunal, it seemed clear that the parties were at the stage of completing the settlement agreement and they would then mutually pursue acceptable wording to properly record the settlement (at para 57). Further, the majority was not persuaded that the draft documents prepared by the School Division were evidence of repudiation of the agreement. Repudiation occurs when one party of the contract is relieved from the contract’s future performance by the conduct of the other party. The documents had been identified as draft in the text of the letter, and there was no insistence that the documents be returned in the form in which they had been presented (at paras 61-63).
The majority also held that the letter of April 7, 2011 was a continuation or renewal of earlier discussions and not an act of repudiation. The evidence did not support a finding that the School Division’s presentation of a draft covenant and a draft release amounted to frustration, renunciation of the settlement agreement, or a refusal to perform the obligations of the settlement agreement of September 8, 2010 (at para 66).
The majority found that the parties reached a settlement of Buterman’s complaint on September 8, 2010, and it remained for the parties to determine the outcome of their executory (not yet fully completed) settlement agreement (at para 70). Further, the Tribunal determined that it would retain jurisdiction over the matter in order to address any further issues that arose with respect to the execution (completion) of the settlement agreement (at para 71).
The dissenting Tribunal member found that there was no meeting of the minds with respect to the essential terms of the settlement. Since human rights issues are constitutional or quasi-constitutional in nature, they are very important to each party, and the nature of the human rights alleged to have been violated and the nature of any defences affect the essential terms (at paras 73-74). Further, there was insufficient evidence to establish that the three settlement documents contained terms that could be reasonably implied (at para 75). The respondent School Division was bringing the preliminary application for an order that the Tribunal had lost jurisdiction, so it had the onus of establishing that a meeting of the minds had occurred with respect to the essential terms so as to enable to find there was a final settlement agreement. This had not been established, so the application should be dismissed (at para 76).
In the alternative, the dissenting member found that the School Division had tendered potentially excessive documents to complete a settlement that did not match the terms of the final agreement previously reached, and thus had repudiated the agreement or made a counter offer. Thus, there would be no final and binding settlement agreement that would be the basis of a loss of the Commission’s jurisdiction (at para 77).
Buterman, 2015 Human Rights Tribunal Decision
The 2015 decision addressed whether the Tribunal had any remaining jurisdiction over the matter, given the course of dealings between the parties since the October 30, 2014 matter was decided.
The same three Tribunal members made a decision in February 2015 regarding the Tribunal’s jurisdiction. Once again the same Tribunal members were split two to one.
After the majority decision of October 30, 2014, the parties took the following steps with respect to the settlement (Buterman, 2015, at paras 9, 11):
[Syncrude Canada Ltd v Alberta (Human Rights and Citizenship Commission), 2008 ABCA 217 dealt with the principle that an interlocutory motion may or may not result in a final decision that may be appealed. Statutory appeals of interlocutory decisions are not contemplated under the AHRA. In this case, the decision that Syncrude could not be released as a party was not a final decision and the appeal was premature. When the Buterman 2014 decision is addressed on appeal, the School Division will likely argue that the appeal was premature, while Buterman’s counsel will argue that the effect of the decision was final and thus the order was subject to an appeal.]
The majority concluded that on October 30, 2014, the evidence showed that the parties had exchanged promises that had not been fulfilled. On November 24, 2014, when the settlement funds were sent to Buterman and the School Division waived the requirement of the withdrawal, covenant and release, the agreement was fully executed (i.e. fully completed) (at para 14).
The majority also concluded that it had no further jurisdiction over the matter. The majority noted that its decision was consistent with Chow v Mobil Oil Canada, in which the Alberta Court of Queen’s Bench held that a concluded settlement that is not in dispute is not only binding on the complainant but must also be accepted by the AHRC (at para 20).
The issue of whether Buterman had entered a settlement agreement was decided by the majority in October 30, 2014. Now that the executory settlement agreement had been executed, the tribunal was without jurisdiction to proceed with Buterman’s human rights complaint.
The dissenting Tribunal member disagreed. The School Division had forwarded a revised release, covenant and withdrawal letter and ultimately had retracted some of the terms that it had previously argued were essential terms of the final settlement agreement. Therefore, the School Division should not be allowed to come back again before the Tribunal requesting that the new agreement with different terms should be enforced as a final settlement agreement (at para 23). One party should not be allowed to unilaterally waive or change the essential terms of a final settlement agreement and then return to the Tribunal to seek another determination as to its loss of jurisdiction (at para 25).
It appears that the School Division was very anxious to settle this case before the merits were considered. It was so anxious that it waived Buterman’s execution of all of the documents it had required (release, covenant and withdrawal). The majority held that the waiver rendered the settlement agreement, which had been held to be executory, to be executed, and caused the majority to conclude that it had lost jurisdiction. This occurred in the context of Buterman desiring the case to be considered on its merits, and his desire to educate all Canadians about transgender rights.
We should be clear about the impact of the School Division’s waiver on the case. The withdrawal of the complaint would no longer be necessary if the Tribunal held that it had lost jurisdiction, so the School Division was not really giving up anything when it waived the withdrawal requirement.
If we believe the description of the contents of the covenant provided in Buterman, 2014, it would likely have been found to be unenforceable, and thus would not have been of much use to the School Division. Confusingly, the decision seems to conflate the terms of the release with the terms of the covenant, which is likely because they are often part of one document. One term of the draft covenant, according to the superintendent of the School Division, referred to all possible forms of a Catholic school in Alberta and extended to 23 school divisions (Buterman, 2014, at para 36). It is not clear whether this refers to the covenant for confidentiality or the release of liability. Buterman believed that he was being asked to covenant not to bring any human rights complaint related to his gender identity against any school in Alberta from now until forever. This would have been of great concern to Buterman, and could have been considered illegal and unenforceable. He was also concerned about the broad confidentiality provisions in the release (Buterman, 2014, at para 52).
Buterman argued that the terms of the release were so materially altered that the School Division must have repudiated the settlement agreement. For example, additional parties were added and it appeared that it would release the School Division from liability for future violations of the AHRA. The decisions indicate that Buterman wanted to gain teaching experience, and this term implied that he would not be able to make a case against any school that refused to hire him or place him on the substitute roster because of his gender identity.
The majority held that concerns about the release and covenant were alleviated because the documents were presented in “draft” form. But, as pointed out by the dissenting member, in the human rights context, a final settlement must enable both parties to clearly understand their rights and obligations and if it does not create certainty, there can be no final settlement (Buterman, 2014, at para 76). The dissent also noted that the documents were provided to Buterman with the request to sign and return them and no mention of future possible amendments, following several months of unsuccessful negotiations between (at that time) legal counsel, and, at the time he was asked to sign he was unrepresented by counsel. In Buterman’s mind, these terms were essential and significant. It is also clear that Buterman did not think he had reached a final settlement.
Now, Buterman is not really clear on his rights and obligations going forward – for example, can he bring another human rights complaint for discrimination by a school in Alberta or is he barred? All he really knows is that his complaint against the School Division is considered settled and he did not get to have a hearing on the merits. In many human rights cases, the remedy desired is not really about money; it is about educating parties about their rights and responsibilities and having respondents acknowledge they have discriminated against someone and are obligated not to continue doing so. There is nothing in this case that indicates the School Division learned anything except how to waive settlement agreement requirements at the last minute in order to make an uncomfortable case “go away”. Hopefully, the Court of Queen’s Bench will overturn Buterman, 2014 later this year so that Buterman gets a full hearing and a remedy that is fair in light of the merits of the claim.
To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca
Follow us on Twitter @ABlawg