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A Constitutional Right to Free Transcripts?

Thu, 01/29/2015 - 9:00am

By: Sarah Burton

PDF Version: A Constitutional Right to Free Transcripts?

Case Commented On: Taylor v St. Denis, 2015 SKCA 1

Last fall, the Supreme Court of Canada found a hearing fee scheme unconstitutional because it prevented people from accessing courts (see Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 (Trial Lawyers)). In Taylor v St. Denis, 2015 SCKA 1 (St Denis), the Saskatchewan Court of Appeal was asked to extend this reasoning to exempt a self-represented litigant from the cost of mandatory trial transcripts. The Court declined this request, choosing instead to distinguish the landmark Supreme Court decision. Unfortunately, the decision in St Denis was impacted by deficits in the applicant’s evidence and arguments. Despite these shortcomings, St Denis serves as a useful indicator to highlight how the Supreme Court’s decision will function as a future precedent.


The applicant, Taylor, appealed the judgments in two defamation actions he commenced. Under the Saskatchewan Court of Appeal Rules, Taylor was required to pay for and file a trial transcript as part of the appeal record (Court of Appeal Rules, Sask Gaz April 18, 1997, Rule 19; The Court Officials Act, SS 2012, c C-43-101, s. 14(2)). Without relevant transcripts, the appeal would not proceed. If the parties could not agree on relevant extracts to produce, the entire transcript was required. The transcript fee in this case was $20,500. Taylor alleged that he could not afford to pay for the transcripts, and sought an order directing an exemption from the fee. He lost that battle on jurisdictional grounds because, in Saskatchewan, transcribing services are provided by and paid to private third parties. The presiding justice lacked jurisdiction to order a private non-party to forego the fee for their services. Taylor then amended his application to request that the Attorney General pay the transcript fee. The Attorney General intervened in opposition to the amended application.

Reasons for Decision

Taylor’s application failed. As is unfortunately the case with many self-represented litigants, Taylor was not his own best advocate, and many of his arguments were hindered by unfamiliarity with complex legal principles. As such, several of his arguments (including a claim under the doctrine of state necessity, Charter ss. 7 and 15(1) breaches, reliance on Criminal Code provisions, and an assertion that the trial judge’s reasoning breached the rule of law) were dismissed with little difficulty (St Denis at paras 12 – 37).

However, Taylor’s submission that the transcript fee violated a constitutional right to access superior courts merited more detailed discussion. This argument rested on the Trial Lawyers decision, wherein the Supreme Court held that hearing fees impermissibly encroach on s. 96 of the Constitution Act, 1867 and the rule of law if they effectively block access to courts (Trial Lawyers at para 2).

Taylor argued that his situation mirrored that in Trial Lawyers. Madam Justice Ryan-Froslie was less convinced, and distinguished Trial Lawyers on four grounds:

  • Every limit on accessing courts is not an automatic constitutional problem (see, for example, British Columbia (Attorney General) v Christie, 2007 SCC 21 (St Denis at para 59)).
  • Transcript fees differ significantly from the hearing fees in Trial Lawyers. Transcripts are a form of evidence, the assembly of which have always been considered personal in nature. Moreover, transcript fees are charged by private individuals as part of their business. It is not a government fee or method of broader government policy implementation (St Denis at para 60).
  • Appellants have some control over the extent and cost of the transcripts they produce on appeal. Where disputes arise, a court application can determine which transcripts are necessary to an appeal (St Denis at para 61).
  • The government’s position on transcript fees is a question about the allocation of scarce resources. This determination is better left to the legislative and executive branches of government (St Denis at para 62).

Alternatively, even if she was wrong in her assessment of Trial Lawyers, Justice Ryan-Froslie noted that Taylor failed to meet the evidentiary standards established in that case. In particular, Taylor failed to demonstrate that he could not afford the $20,500 fee, as the evidence he submitted regarding his financial position was lacking on several vital points (St Denis at paras 33-35, 63, 65).

On a conciliatory note, Justice Ryan-Froslie adjourned opposing counsel’s cross-application demanding that Taylor’s appeal be perfected. She directed the parties to a pre-hearing conference where they could determine what portions of the trial transcripts were actually necessary to the appeal.


Distinguishing the Trial Lawyers Decision

Given the burden that a broad reading of Trial Lawyers could impose on courts and government, this application would have been difficult to win even with an ideal fact pattern and experienced counsel. Unfortunately, neither of these factors was present here. As such, the Court did not hear a clear and compelling argument about how the hearing fees in Trial Lawyers are comparable to mandatory trial transcripts. This missed opportunity permitted the Court of Appeal to emphasize the differences between these two cases and draw on Taylor’s evidentiary weaknesses to reach its decision.

For example, unlike Trial Lawyers, Taylor’s $20,500 transcript fee was not a flat and unavoidable charge. Instead, it depended on the scope and style of appeal being launched. While not stated expressly, it seems that Taylor was demanding that the full trial record from the 29-day trial be transcribed. As Justice Ryan-Froslie correctly noted, there were a variety of methods open to Taylor to reduce the $20,500 fee to a more affordable level. Even though a much more reasonable fee (say $5,000) could still have been too expensive to afford, Taylor’s role in reaching the $20,500 figure significantly weakened his argument that the government should bear the cost.

The Court of Appeal further emphasized the difference with Trial Lawyers by reference to government policy. The Supreme Court in Trial Lawyers was notably influenced by the fact that hearing fees were a tool to implement government policy (in that case, encouraging the efficient use of court time). However well intentioned, this policy had the effect of entirely blocking some people with valid claims from accessing court, and that was unacceptable (Trial Lawyers at paras 22, 51, 52). In St Denis, the transcript fee was not a government fee. Justice Ryan-Froslie used this discrepancy to distinguish the Supreme Court’s decision (St Denis at para 60). A persuasive argument could have been made that that the privatization of transcribing services is indeed a government policy. Arguably, this policy accomplishes the same goal, and has the same shortcomings, as the policy at issue in Trial Lawyers. Unfortunately, this argument was not pursued by Taylor.

Lastly, the St Denis decision was likely influenced by the fact that Taylor sought access to the Court of Appeal as opposed to the Court of Queen’s Bench. Justice Ryan-Froslie correctly noted that Courts of Appeal are “superior courts” (The Court of Appeal Act, SS 2000, c C-42.1 s 3(1)), and that the reasoning in Trial Lawyers applied equally to Courts of Appeal (St Denis at para 57). Nonetheless, this unquestionably lessened the persuasiveness of Taylor’s argument. The Court in Trial Lawyers provided inspired passages on the fundamental importance of superior courts and their core jurisdiction in resolving disputes (Trial Lawyers at paras 31-33). This rhetoric does not resonate as strongly when discussing the Court of Appeal, as Taylor already had his day in court. Given the broad nature of the appeal he was launching, it seemed that he was seeking the right to re-argue that case. In short, Taylor’s facts did not create any incentive for the Court of Appeal to stretch the reasoning in Trial Lawyers to help him out.

Developing Law with Self Represented Litigants

Unfortunately, Taylor’s self-representation clearly hindered his ability to launch a successful argument, and the evidentiary shortcomings may have defeated his case before it began. One cannot help but feel Taylor’s frustration with the complexity of the process. From his perspective, Taylor faced a $20,500 cover charge to launch an appeal. Finding this burden insurmountable, he applied to have the fee waived. His application was dismissed on a jurisdictional point and before he knew it, Taylor was arguing about the constitutionality of s. 14 of The Court Officials Act against counsel for the Attorney General.

This complexity is commonplace in the legal profession, but it does little to make the justice system appear accessible to our community. It also does not help the justice system’s struggling public image as a broken and insular entity (see Dr Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (May 2013) at 110); Canadian Bar Association, Reaching Equal Justice Report (November 2013)). Indeed, the Court of Appeal’s written decision itself is legalistic and formal, and I suspect it will serve lawyers looking for a precedent more than it will ever help Taylor understand why he lost his application.

Having said all that, there is a significant positive development in the decision. Justice Ryan-Froslie should be commended for providing a much-needed beacon of practical insight when she directed that the matter proceed to a pre-hearing conference. In so doing, she cut through the complex legal concerns to address the real issue, the $20,500 price tag. Even though there may be no constitutional right to free transcripts, this direction recognizes the Court’s discomfort with fees preventing someone from launching an otherwise meritorious appeal.

By stepping into a role more akin to case management, Justice Ryan-Froslie will be able to achieve more for both parties than any court application would ever accomplish. This step is often invaluable when dealing with self-represented litigants, who have repeatedly expressed their increased satisfaction with Court processes when they can deal with judges in this capacity (see MacFarlane, supra at 13, 14, 126). Shifting to case management orientation is a move that, at first, may appear to strain an already stretched legal system. I would suggest, however, that it will save time and money in clearing the courtroom of many inefficient applications, and will increase public confidence and support of our justice system.

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University of Calgary is the Place to be for Environmental Law in 2015

Wed, 01/28/2015 - 10:00am

By: Martin Olszynski, Scott Allen and Allan Ingelson

PDF Version: University of Calgary is the Place to be for Environmental Law in 2015

Conferences Commented On: 2015 CAELS Conference: “Igniting a Spark”; CIRL/CBA NEERLS Symposium on Environment in the Courtroom; JELP 5: “Après le Deluge”

When it rains, it pours. And so it is that the first half of 2015 has the University of Calgary Faculty of Law hosting a series of national environmental law conferences.

2015 Canadian Association of Environmental Law Students (CAELS) Conference: “Igniting a Spark”, February 13 & 14, 2015

Formed in Ottawa a couple of years ago by the membership of the-then University of Ottawa Environmental Law Students Association, CAELS is a networking body connecting environmental law students across Canada. This past year, responsibility for organizing CAELS’ annual conference was transferred to the University of Calgary’s Environmental Law Society (ELS).

This year’s theme, “Igniting a Spark,” focuses on innovations and solutions to the pressing issues of Canadian environmental, energy and natural resources law and policy. The student-run ELS has done an impressive job of securing expert panellists from the private bar, academia, government and non-governmental organizations to discuss a wide range of issues including pipelines, liquefied natural gas development, climate change, federal environmental law reform and Aboriginal law issues.

Supported by the Alberta Law Foundation and the Shell Experiential Energy Learning Program, the 2015 CAELS Conference welcomes students and practitioners from all relevant disciplines to take part. The full program and registration are available here.

CIRL/CBA NEERLS Symposium on Environment in the Courtroom IV: “Evidentiary Issues in Environmental Prosecutions and Hearings”, March 6 & 7, 2015

Over the course of the past three years and with financial support from Environment Canada (EC), the Canadian Institute for Resources Law (CIRL) has organized a series of symposia intended to strengthen the understanding and application of environmental law in Canadian courtrooms (see here for an overview of previous symposia). This year, CIRL has teamed up with the National Environmental, Energy, and Resources Law Section (NEERLS) of the Canadian Bar Association (CBA) to deliver the fourth instalment of this highly successful series, which will focus on evidentiary issues in environmental prosecutions and hearings.

Session topics include a cross-country check up on environmental prosecutions across Canada, a primer on the relevant science (everything you needed to know but were afraid to ask), issues with causation, the law on expert evidence, as well as more practice-oriented sessions, including how to prepare and cross examine expert witnesses. The full program is available here.

This year’s symposium is being held concurrently with the CBA NEERLS Annual Summit, which means networking opportunities for environmental lawyers throughout Canada and opportunities to discuss the most recent developments and current issues in environmental law more generally. Registration is available at CBA NEERLS.

Journal of Environmental Law and Practice (JELP) 5th Conference: “Après…le Deluge: Future Directions for Environmental Law and Policy in Canada”, June 6 & 7, 2015

Finally, the first weekend in June will see environmental law scholars, practitioners, as well as analysts from both government and non-governmental organizations, gather at the Faculty of Law and at the Kananaskis Field Station for the JELP’s 5th biennial conference.

This year’s conference theme, “Après… le Deluge,” invites participants to assess the current state of federal environmental law and policy, especially in the wake of the 2012 omnibus budget bills that introduced a new environmental assessment regime and amended several other acts, including the Fisheries Act, RSC 1985, c F-14 and the recently renamed Navigation Protection Act, RSC 1985, c N-22. Participants will also consider potential responses to what is widely perceived as a federal retreat in the environmental arena, whether by other levels of government (e.g. provincial, territorial, Aboriginal) or in other areas of law, such as the common law or international law.

A call for papers was sent out in mid-December, 2014 (proposals are still being accepted), and a finalized program should be available by the end of February, 2015. The program, as well as instructions for general registration, will be made available on JELP’s website at that time.

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Providing an Effective Remedy for the ISO’s Unlawful Line Loss Rule

Tue, 01/27/2015 - 9:00am

By: Nigel Bankes

PDF Version: Providing an Effective Remedy for the ISO’s Unlawful Line Loss Rule

Decision Commented On: AUC Decision 790-D02-2015, Milner Power Inc. and ATCO Power Ltd, Complaints re the ISO Transmission Loss Factor Rule and Loss Factor Methodology, Phase 2 Module A, January 20, 2015

In this decision the Alberta Utilities Commission (AUC) has decided that it has the jurisdiction to grant tariff-based relief in a case where a rule of the Independent System Operator (ISO) is found to be unlawful on the basis that it was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act (EUA) (now SA 2003, c. E-5.1) and the Transmission Regulation (now Alta Reg 86/2007). Such relief may involve retrospective or retroactive adjustments to the ISO tariff going back to the date when the Rule first entered into force (January 1, 2006, Milner Power having originally filed its objection to the ISO Line Loss Rule in August 2005 before the rule came into force).

In AUC Decision 2014-110, the AUC confirmed its earlier conclusion in Decision 2012-104 to the effect that the ISO’s Line Loss Rule was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act and the Transmission Regulation on the grounds that the rule disadvantages generators that are loss savers and does not properly charge loss creators for their losses. The AUC’s Decision 2014-110 is the subject of an ABlawg post by Sean Bullen here.

Having made that determination the AUC then had to assess what remedy might be available. This decision comprises the first step in that procedure. The AUC’s comprehensive 80 page decision sets out the basis on which the Commission concluded that it had the jurisdiction to grant tariff-based relief. In doing so the Commission had to grapple with two principal issues. First, there was the reality that the terms of both the both the EUA and the Transmission Regulation had changed over the time period in question. Second, there is a long standing principle that a utility commission generally does not have the jurisdiction to engage in retroactive or retrospective rate making.

As to the first issue the Commission concluded that while there had been changes in the Act and Regulation these were not such as to deprive the complainants of their right to a remedy (at paras 221 and 239).

As to the second issue, the Commission concluded that there were a number of established exceptions to the principle that a utilities commission cannot engage in retroactive or retrospective rate making and that the present case fell within a number of these exceptions. The exceptions are as follows (at paras 153-212):

  1. A Utilities Commission can always adjust interim rates back to the date of the interim order: Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 SCR 1722; Re Coseka Resources Ltd. and Saratoga Processing Co., 1981 ABCA 180, 126 DLR (3d) 705 (Alta CA).
  1. A Utilities Commission can use deferral accounts to adjust rates: Bell Canada Bell Aliant Regional Communications, [2009] 2 SCR 764, 2009 SCC 40; Calgary (City) v Alberta (Energy and Utilities Board), 2010 ABCA 132.
  1. A complaint based statutory scheme (referred to here as a negative disallowance scheme) as opposed to a scheme that requires prospective approval of rates by a Utilities Commission necessarily contemplates that the Commission has the jurisdiction to set just and reasonable rates in substitution for those set unilaterally by the Utility (or in this case ISO) back to the date of the complaint: Nova, An Alberta Corporation Amoco Canada Petroleum Company Ltd., [1981] 2 SCR 437, 1981 CanLII 211 (SCC).
  1. The knowledge exception: a Utilities Commission can change the rates where affected parties knew or ought to have known that rates were subject to change.
  1. The nullity exception: a Utilities Commission can (re)establish a new set of rates on a retrospective or retroactive basis when a set of rates has been shown to be a nullity.

The Commission relied on the first four exceptions in concluding that it had the jurisdiction to proceed with tariff-based relief. That said, the knowledge exception seems to function more as overarching principle that connects the first three exceptions rather than as an independent source of authority. Furthermore it should be noted that while the version of the legislation in force at the time of Milner Power’s original complaint was a negative disallowance scheme the current provision is (at para 219) “strictly prospective in application”.

This is a well-crafted decision which reaches a practical and just conclusion; any other conclusion would have rendered the entire complaint process (at least as it originally stood) completely hollow. It is true that there will be challenges ahead in working out the details of “tariff-based relief” but, as the Commission noted (at para 167), the Supreme Court’s 1989 decision in Bell Canada makes it clear that perfection is not required in crafting a set of retrospective or retroactive rates designed to rectify what would otherwise be unjust and unreasonable rates (the earlier version of the EUA) or which fail to support the fair, efficient and openly competitive operation of the market (the FEOC principle which now animates the test for a valid rule – see para 258).

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First Nations Community Election Codes and the Charter

Mon, 01/19/2015 - 10:45am

By: Jennifer Koshan

PDF Version: First Nations Community Election Codes and the Charter

Case Commented On:  Orr v Peerless Trout First Nation, 2015 ABQB 5

In December Jonnette Watson Hamilton and I wrote a post commenting on Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal granted 2013 CanLII 83791 (SCC), a case currently before the Supreme Court which involves the constitutionality of a First Nations election code.  A similar case arose in Alberta recently.  In Orr v Peerless Trout First Nation, 2015 ABQB 5, Master L.A. Smart dismissed a claim by a member of the Peerless Trout First Nation alleging that that Nation’s Customary Election Regulations were unconstitutional.

Peerless Trout First Nation (PTFN) is described as “a self-governed First Nation in the Treaty 8 Territory of Northern Alberta” (at para 4).  Section 74(1) of the Indian Act, RSC1951, c 29 empowers the Minister of Indian Affairs and Northern Development to permit a First Nation to develop its own election code for the purposes of electing the Chief and members of Band Council.  The PTFN has adopted an election code, the Customary Election Regulations, the relevant provisions of which are as follows:

9.3      Electors Eligible for Nomination

(a)   All Electors must be 18 years of age or older.

(b)   Any Elector convicted of an unpardonable indictable offence or who is charged with an indictable criminal offence at the time of Nomination is not eligible to be Nominated.

(c)   Any Elector who is a Plaintiff in a civil action against the PTFN is not eligible to be Nominated.

(d)   Electors employed by the PTFN or a PTFN Business Entity are not eligible to be Nominated.

Master Smart noted that Taypotat had decided that First Nation election codes are subject to the Charter (2013 FCA 192 at paras 34-42). In Taypotat, the Federal Court of Appeal considered the application section of the Charter, section 32, which provides that the Charter applies “(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”  The Federal Court acknowledged that a First Nation is “clearly a sui generis government entity”, yet it “exercises government authority within the sphere of federal jurisdiction under the Indian Act and other federal legislation” (Taypotat at para 36). The Supreme Court had previously held that First Nations elections are subject to the Charter (see Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203), and although the Charter must be interpreted so as not to “abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” (see section 25 of the Charter), there were no aboriginal or treaty rights at issue in Taypotat (at paras 37, 42). For these reasons, the Charter was found to apply to the First Nations election code at issue in Taypotat.  Master Smart did not review these reasons in the specific factual context of the PTFN election code, and simply adopted the holding from Taypotat that the Charter applied.

Orr’s argument was that section 9.3(c) of the Customary Election Regulations – which makes any elector who is a plaintiff in a civil action against the PTFN ineligible to be nominated as a candidate for election – violated several sections of the Charter.  Master Smart dismissed each of these arguments in turn.

Orr’s first argument was that section 9.3(c) of the Customary Election Regulations violated section 2(b) of the Charter, which protects freedom of expression.  The specifics of this argument were not clear, but Master Smart relied (at para 13) on Baier v Alberta, [2007] 2 SCR 673, 2007 SCC 31, which decided that although a prohibition against school employees standing for election as school trustees may have limited access to a platform for expression, it did not violate section 2(b) of the Charter. Section 2(b) generally protects against government interference with expression rather than providing a positive right to particular methods or locations for expression, and was therefore not engaged here.

Second, Orr argued that section 9.3(c) of the Customary Election Regulations infringed section 2(d) of the Charter, which protects freedom of association. Violations of section 2(d) turn on whether “the state [has] precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals?” (at para 14, citing Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016, 2001 SCC 94 at para 16). Noting that Orr had not provided the specifics of this argument either, Justice Smart dismissed the claim on the basis that the restriction on eligibility to stand for election did not interfere with Orr’s “ability to establish, belong to [or] maintain an association” (at para 16).

Orr’s third argument – that section 9.3(c) of the Customary Election Regulations violated section 3 of the Charter – was also dismissed.  Section 3 protects democratic rights, but has previously been found to apply only to federal and provincial elections (Haig v Canada, [1993] 2 SCR 995, 1993 CanLII 58 (SCC)), and not to band council elections (Crow v Blood Band, [1996] FCJ No 119 at para 23). A similar dismissal of section 3 Charter arguments occurred in Taypotat (at paras 27-29).

More attention was devoted to Orr’s fourth argument – that section 9.3(c) of the Customary Election Regulations was discriminatory, contrary to section 15(1) of the Charter – perhaps because section 15 was also the focus of Taypotat.  Master Smart noted that the discrimination argument was successful in Taypotat on the grounds that the grade 12 education requirement at issue in that case was found to create an adverse impact on the claimant and others based on age and aboriginality-residence.  Age is a ground expressly protected under section 15(1) of the Charter, and aboriginality-residence qualifies as an analogous ground pursuant to the Supreme Court decision in Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, 1999 CanLII 687 (SCC).  In Orr’s case, however, being a plaintiff in a civil action against the PTFN did not relate to any enumerated grounds protected under section 15(1), nor did it constitute an analogous ground, which includes only personal characteristics that are “immutable or changeable only at unacceptable cost to personal identity” (Corbiere at p219, cited in Orr at para 20). Master Smart also found that the restriction on election eligibility in section 9.3(c) of the Customary Election Regulations was not discriminatory – it did not perpetuate any “pre-existing disadvantage, vulnerability, stereotype or prejudice suffered by the Applicant which might support a finding of discrimination” (at para 22).

Finally, Master Smart dismissed Orr’s argument that section 9.3(c) of the Customary Election Regulations infringed the protection of aboriginal and treaty rights under section 35 of the Constitution Act, 1982, noting that the argument was without basis (at para 24).

We argued in our post on Taypotat that there are some strong arguments that the community election code at issue in that case does infringe section 15(1) of the Charter.  Even if the Supreme Court upholds the Federal Court of Appeal decision in Taypotat, however, the arguments made by Orr under section 15(1) are weak in light of the requirement of proving a distinction based on a protected ground that results in discrimination. Orr’s other constitutional arguments were similarly weak, and Master Smart’s decision to dismiss the claim was a sound one.

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Deconstructing Investigative Detention

Wed, 01/14/2015 - 9:00am

By: Dylan Finlay

PDF Version: Deconstructing Investigative Detention

Case Commented On: R v Rowson, 2014 ABQB 79

Crime scenes are often intense and dynamic environments. This presents a challenge to investigators who – prior to making an arrest – must collect enough evidence to satisfy the standard of ‘reasonable and probable grounds.’ The recent case of R v Rowson, 2014 ABQB 79 displays this hurdle. The scene of the alleged crime – a motor vehicle collision – was attended by paramedics, firefighters, the police, and an air ambulance helicopter. Collecting enough evidence to make an arrest was not the police’s immediate priority. To mitigate the challenge that inevitably arises in situations such as this, police are armed with the common-law power of investigative detention. This post will deconstruct this power.

The common law power of investigative detention was developed incrementally and recognized by the Supreme Court of Canada in R v Mann, 2004 SCC 52. This case involved two police officers who, while responding to a break and enter, encountered an individual who matched the description of the offender. The individual, Mr. Mann, was stopped and made subject to a pat-down search during which one of the officers felt a soft object in his pocket. Upon reaching inside the pocket, the officer found 27.55 grams of marijuana and a number of small plastic baggies. Mann was subsequently arrested; prior to this he had only been under a state of detention. At trial, Connor Prov. Ct. J. held that while the police were justified in searching Mann for security reasons, reaching into the appellant’s front pocket after feeling a soft item therein was not justified in the circumstances. The conduct thus contravened s. 8 of the Charter, the right to be secure against unreasonable search or seizure. On appeal, the Manitoba Court of Appeal held that it was not unreasonable for the police to continue the search inside of the pocket. This was further appealed to the Supreme Court of Canada.

Iacobucci J., writing for the majority, recognized “a limited police power of investigative detention” (at para 18). The scope of the term ‘detention’ within ss. 9 and 10 of the Charter was held to cover only delays that involve “significant physical or psychological restraint” (at para 19). Section 9 of the Charter provides that everyone has the right “not to be arbitrarily detained.” Since a lawful detention is not arbitrary, an investigative detention that is carried out in accordance with the common law power recognized in Mann will not infringe an individual’s Charter rights (at para 20).

To make a warrantless arrest an officer must have reasonable and probable grounds to believe the individual has committed an indictable offence, or the officer must have found the individual committing a criminal offence, or the officer must have reasonable and probable grounds to believe that a warrant is in force for arrest (s. 495(1) of the Criminal Code, RSC 1985, c C-46). It is important to note that the Criminal Code uses the term ‘reasonable grounds,’ rather than ‘reasonable and probable grounds.’ However, R v Loewen, [2011] 2 SCR 167 confirms that the standard of ‘reasonable grounds’ as prescribed by s. 495(1) actually requires ‘reasonable and probable grounds.’ Thus the two phrases can be used interchangeably in the context of a warrantless arrest.

In contrast to the standard required to make a warrantless arrest, what is the threshold test for lawful investigative detention? The first articulation of such a test occurred in the English Court of Criminal Appeal case of R v Waterfield and Another, [1964] 1 QB 164 (cited in Mann at para 24). A police officer’s conduct is prima facie an unlawful interference. To be deemed lawful, a two-pronged test emerges: it must be asked if the detaining officer’s conduct first fell “within the general scope of any duty imposed by statute or recognised at common law, and, secondly, if the conduct did so fall, whether it involved an unjustifiable use of powers associated with the duty” (Mann at para 24). The first branch is derived from the nature and scope of police duties, including the common law duty to preserve the peace, prevent crime, and protect life and liberty, subject to reasonableness (Mann at para 26). The second branch was elaborated upon by the Ontario Court of Appeal in R v Simpson (1993), 12 OR (3d) 182 (CA), holding that the detaining officer must have “some ‘articulable cause’ for the detention,” a concept borrowed from American jurisprudence (Simpson at para 58). This threshold is both lower than reasonable and probable grounds, being closer to that of ‘reasonable suspicion,’ and involves the objective and subjective aspects established by R v Storrey, [1990] 1 SCR 241 (Simpson at para 61).

Despite considering the ‘articulable cause’ standard, the majority in Mann preferred the phrase ‘reasonable grounds to detain’ (at para 33). The test is articulated as follows (at para 34):

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individuals to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular investigation is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference.

In other words, the officer must have reasonable grounds to believe there is a nexus between the individual detained and a criminal offence. The detention must also be reasonably necessary and assessed against the totality of the circumstances as reasonable. It should remain brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police (Mann at para 45).

Where does ‘reasonable grounds to detain’ figure into the myriad of standards associated with arrest, search, and detention? The majority left out the term ‘probable,’ possibly because with ‘reasonable and probable grounds’ the officer could make an arrest. However, the problem with making the above assumption is that it is possible that the Court used the term ‘reasonable grounds to detain’ but meant ‘reasonable and probable grounds to detain.’ Mann occurred before Loewen confirmed that the two articulations are interchangeable. Deschamps J., writing for the dissent in Mann, adds some clarity to this quandary. The dissent in Mann prefers the term ‘articulable cause’ to ‘reasonable grounds to detain’ primarily because “‘[r]easonable grounds’ has traditionally been employed to describe the standard which must be met in order to give rise to the power to arrest a suspect . . . Using this term in the present context could lead to the erroneous conclusion that the same degree of justification is required for a detention as is required in order to carry out an arrest. This cannot be the case. It would undermine the very purpose of the common law power to detain, which is to provide police with a less extensive and intrusive means of carrying out their duties where they do not have sufficient grounds for arrest” (at para 64). Therefore the standard of ‘reasonable grounds to detain’ must be interpreted as somewhere below ‘reasonable and probable grounds’ and closer to that of ‘reasonable suspicion.’

The true issue in Mann was not whether the investigative detention was lawful, but rather whether the pat-down search was lawful as a search incident to investigative detention. In the context of an arrest, the Supreme Court has held that police officers are empowered to search without a warrant for weapons or to preserve evidence (R v Golden, [2001] 3 SCR 679 at par 94). Mann recognizes that the common law police power of search incident to arrest applies to search incident to investigative detention (at para 38). This is again subject to the test articulated in Waterfield. The first prong of the test recognizes search incident to investigative detention as arising from the general scope of police duty (at para 38). The second prong limits the first to searches that are reasonably necessary (at para 39). In reference to a pat-down search, the Court explicitly states that such a power to search does not exist as a matter of course, but rather only if the detaining officer has reasonable grounds to believe his or her own safety or the safety of others is at risk (at para 40). In the context of the facts in Mann, it was reasonable for the officers to conduct a pat-down search because there “was a logical possibility that the appellant, suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons” (at para 48).

An officer making an investigative detention does not only have to comply with the appropriate standard and refrain from making unreasonable searches, he or she must also comply with s. 10 of the Charter. To do this, he or she must first advise the detained individual of the reasons for the detention, as s. 10(a) of the Charter provides (Mann at para 22). Section 10(b) of the Charter, the right to retain and instruct counsel without delay and to be informed thereof, is not strictly adopted by the Supreme Court; the Court instead held that it “must be purposively interpreted,” and left further articulation to the lower courts, noting only that mandatory compliance cannot be turned into an excuse to prolong the detention, which must remain brief (at para 22).

R v Orbanski; R v Elias, [2005] 2 SCR 3 further articulates the s. 10(b) requirement in relation to investigative detention. The issue in this case centered upon whether an officer may ask questions about alcohol consumption and request a driver perform sobriety tests prior to complying with s. 10(b) (at para 22). The Court held that in the context of investigating a driver’s sobriety at the roadside, s. 10(b) is suspended. However the scope of s. 10(b) rights in the broader context of investigative detention was left unanswered.

The Court in R v Suberu, [2009] 2 SCR 460 held that subject to a few conditions, s. 10(b) rights arise immediately upon detention. Paragraph 42 of Suberu states:

In our view, the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10(b). Subject to concerns for officers or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

Despite the strict interpretation in Suberu, one’s thoughts must turn to the potential remedy. In Rowson, the police placed Mr. Rowson under investigative detention for dangerous and possibly impaired driving. At a voir dire on the Charter issues, it was conceded that the detaining officer did not inform Rowson of his right to counsel at this time, but rather a few minutes later when he was placed under arrest. In terms of remedy for the breach of s. 10(b), it was held that statements made by Rowson were to be excluded up until he was informed of his right to counsel. The investigative detention remained lawful, however.

Breath samples obtained after Rowson was informed of his right to counsel were found to be admissible, and he was convicted of a number of impaired driving related charges following a trial. The Crown advises that the accused is pursuing an appeal.

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We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

Tue, 01/13/2015 - 9:00am

By: John-Paul Boyd

PDF Version: We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

In many of Canada’s family law courts, especially our provincial courts, the majority of litigants now appear without counsel. This state of affairs should have been a foreseeable consequence of the diminution of legal aid representation in family law cases coupled with the relative absence of market forces impelling private family law lawyers to reduce their rates or embrace new service models, but it is nonetheless where we find ourselves today.

It is easy enough to point to the observable consequences of this superabundance of litigants without counsel – chief among them the increased number of ill-conceived chambers applications, the ever-expanding length of trials and the congestion presently plaguing court registries – and shudder in horror. However, it must be borne in mind that the justice system is not our system, a system for judges and lawyers, but their system, a system that belongs to the users of the system, the litigants themselves. As a result, despite the inconveniences enuring to the mutual discomfort of bench and bar, I am hard pressed to conclude that there is anything fundamentally wrong with the growing presence of unrepresented litigants; the situation is infelicitous, to be sure, but not iniquitous.

The engagement of so many litigants without counsel in court processes could be viewed as prima facie evidence that family justice is accessible, however as the recent work of Professor Julie Macfarlane and the Canadian Research Institute for Law and the Family demonstrates, this sort of “access” is superficial and doesn’t go much further than being able to find the front door of the courthouse; there would still be lineups to get into the only hospital in town even were it staffed by a third of the necessary doctors and equipped with a third of the necessary beds, but we wouldn’t call that accessible health care. The research produced by Macfarlane and the Research Institute shows that litigants have enormous difficulty understanding and navigating the rules of court, the rules of evidence, court processes and the legislation applicable to their cases, and that, unsurprisingly, they find the justice system to be impossibly intimidating, incomprehensible and inaccessible.

This raises a special set of problems for litigants involved in family law disputes. Family law is a unique species of civil law for many reasons, but primarily because of: the frequency with which disputes brought to court concern social, psychological and emotional issues rather than legal; the almost complete absence of circumstances in which a specific legal conclusion invariably and inevitably results from a particular set of facts; and, the range of other areas of the law that may be concurrently applicable, such as contracts, tax, conflicts, real property, negligence, torts and trusts. Family law, in other words, is complex, and the questions this note seeks to explore are the extent to which complexity is necessary or desirable, and the extent to which complexity is compatible with fairness and an accessible system of family justice.

To begin with, it must be noted that the federal and provincial legislation on domestic relations is an expression of social values and government social policy. Divorce is bad, and accordingly the 1857 UK Divorce and Matrimonial Causes Act made it very difficult to get a divorce a vinculo, especially if you were a woman; adultery and abuse are bad, and accordingly the 1968 Canadian Divorce Act required the court to take matrimonial misconduct into account when determining issues of custody and support. Today, some of the clearest examples of social policy questions resolvable by legislation concern:

  • Children – Should both parents always be presumed to be the children’s custodians? Should a default parenting schedule be prescribed by legislation?
  • Child Support – If and when should stepparents assume a liability to pay child support? Should children be allowed as adults to sue to collect arrears accumulating during their minority?
  • Spousal Support – Should the income of dependent spouses’ new partners be considered in determining eligibility for support? Should spousal support be paid from income derived from assets that have already been divided as matrimonial property?
  • Property – Should unmarried couples have interests equivalent to those of married couples? Should property acquired before the commencement of a relationship take priority over property acquired during the relationship, or should primacy be given to the latter rather than the former?

Given that the moderation of conflict is a critical psychological, social, legal and economic value, it also stands to reason that certainty would inform the manner in which social policy is expressed through legislation, particularly in family law matters. Certainty is, by and large, a valuable and useful quality, particularly for litigants without counsel. Knowing that only X equals Y saves a great deal of time and money arguing about the possibility that Z might also equal Y; it helps to improve the predictability of litigated outcomes; it depersonalizes disputes, insofar as it’s not anyone’s fault that X equals Y; and, it promotes settlement by limiting the available options and thus circumscribing litigants’ hopes and expectations.

Financial issues have proven to be most amenable to certainty in family law matters, as a result of which we have the tables of quantum provided by the Child Support Guidelines, the formulae set out in the Spousal Support Advisory Guidelines for the calculation of duration and quantum, and legislation establishing presumptions of varying strength with respect to the division of matrimonial property. Despite the efforts of MP Maurice Vellacott and his perpetually recurring Bill C-560, certainty as to the care and control of children after separation remains elusive, with, I suggest, good reason.

Nevertheless, certainty is the enemy of complexity in most legal matters save those relating to taxation. Certainty must yield results fulfilling government’s social policy goals and those results must be objectively fair, however, because justice systems are human rather than mechanical in nature, the correct expression of this principle is that certainty must tend to yield results fulfilling government’s social policy goals and those results must be subjectively fair for most people most of the time. It is important to observe that in adding even these modestly temporizing qualifications, abstract conceptions of objective certainty already begin to be undermined by subjective considerations, and a hint of the complexity that must necessarily fill the void begins to emerge.

Attempts to reconcile social policy, certainty and complexity produces legislation that is ultimately, although perhaps unintentionally, utilitarian in design, inasmuch as it is generally intended to produce the greatest good for the greatest number, and therefore also normative. The classic bell curve that models the normal statistical distribution of many human qualities, from IQ scores to height, to the likelihood that the bus will arrive on time, can also be used to model the impact of family law legislation on dissolving families.

For most people, the application of the rules and principles set out in normative legislation will yield a fair, if not actually good, result. Assuming a normal statistical distribution, this should be the experience for almost 70% of the population, those grouped within the first standard deviation on either side of an average result. However, the more a family’s circumstances tend to depart from those of the hypothetical everyman family for whom the legislation was written, the less satisfactory are the results produced by the application of that legislation.

It’s entirely reasonable, for instance, that spousal support would be permanently payable for a couple leaving a long-term, traditional marriage of the Leave it to Beaver variety, in which the dependent spouse has sacrificed her career and employability to manage and nurture the family while the payor worked outside the home supporting the family and incidentally improving his earning potential. It’s far less just for a couple leaving a two- or three-year relationship during which the dependent spouse became permanently unemployable as a result of a drunk driving accident or botched suicide attempt, and yet the indefinite payment of spousal support in such a case is the probable outcome, barring a hefty insurance settlement or another source of income.

Thankfully, relatively few families should find themselves in the tail areas of the bell curve; again assuming a normal statistical distribution, the outcomes obtained by less than 5% of the total population, those in the third and fourth deviations, ought to be unfair or very unfair compared to an average result. In my experience as a family law lawyer, however, it has seemed to me that the bell curve modeling the impact of legislation on my clients has perhaps a higher standard of deviation than the norm, giving the bell curve a greater population at the extremes and thus fatter tails than suggested by the normal distribution; in other words, my impression is that quite a bit more than 5% of separating couples experience an unfair or very unfair result from the application of family law legislation. (This is certainly the experience of many of the unrepresented litigants discussed in Macfarlane’s research and the Canadian Bar Association’s recent report on access to justice.) My views may be the result of sample error, given that the families who consult counsel tend to be those whose circumstances are complex or conflicted; whether this is an error or not, it is also the experience of our judges, who deal with a still higher proportion of families in complex and conflicted circumstances.

In anticipation of just such unfairness, most if not all of the legislation on domestic relations come with built-in safety mechanisms. British Columbia’s repealed Family Relations Act, for example, provided that spouses would each receive a one-half share of the family property, unless an equal division would be “unfair” considering a non-exhaustive list of six factors; its new Family Law Act prescribes an equal division unless an equal division would be “significantly unfair” upon consideration of an even longer non-exhaustive list of factors. The Family Law Act offers similar exemptions in respect of presumptions that would otherwise require parenting time and parental responsibilities to be shared equally, that all parental responsibilities after the death of one guardian be vested in those which survive, and deem a proposed relocation to be in the best interests of a child once certain conditions are met.

Other, better-known examples of such safety mechanisms are found in the Child Support Guidelines, a regulation that presumptively determines the quantum of support awards according to the payor’s income and the number of children for whom support is being paid. The Guidelines provide escape valves that allow the court to depart from the tables of quantum when: a dependent child is an adult; the payor’s income is more than $150,000 per year; the payor is a stepparent; each parent has the primary care of one or more siblings, known as “split custody;” the parents share the children’s time equally or near-equally, known as “shared custody;” or, a parent would suffer “undue hardship” were the table amount to be paid. (These safety mechanisms are particularly important for married parents given that the Divorce Act prohibits the granting of divorce orders unless “reasonable arrangements,” usually interpreted as payment according to the Guidelines tables, have been made for the support of the children.)

To put things another way, the drafters of our family law legislation, being aware that all families are neither cut from the same cloth nor use the same tailor, have included in their work certain presumptions, providing objective fairness, along with means of avoiding those presumptions, providing an element of subjective fairness for those families in the tails of the bell curve. Although this approach is sensible and laudable, the discretion demanded by subjective considerations undermines the certainty provided by the presumptions, resulting in the exacerbation of complexity, particularly where the exceptions themselves are couched in ambiguous language that cannot be understood without reference to the case law interpreting that language.

Returning to child support for an illustration, section 8 of the Guidelines discusses the calculation of quantum in situations of split custody and section 9 concerns situations of shared custody. Section 8 requires that the parents’ table obligations be offset against one another, with the parent having the greater financial obligation paying the difference:

Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

Section 9, on the other hand, says this:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

While section 8 provides a concrete and readily calculable formula, section 9 simply lists three factors that need to be considered when fixing an appropriate amount of support, and the amount payable is therefore indeterminate. As a result, parents with shared custody of their children must be able to access and understand the case law interpreting section 9 in order to have any hope of gauging the amount of support they may be obliged to pay or entitled to receive, and indeed whether they meet the 40% threshold for shared custody at all.

Two problems follow from the complexity entailed by discretion. First, complexity gives courts the opportunity to craft judgments that are precisely and often uniquely tailored to the particular circumstances of the family before them. Few litigants or lawyers would argue that this sort of bespoke justice is anything other than a highly desirable outcome, but the end result is the fraying of the tapestry of the common law with inconsistent and sometimes incoherent case law that becomes increasingly intricate as exception after exception is carved out of general, normative principles to meet the needs of individual families.

Second, it means that the law that applies to a particular legal problem becomes obfuscated and ceases to be intelligible merely upon review of the applicable legislation. The case law describing the range of circumstances invoked by open-ended lists of factors and interpreting phrases such as “undue hardship,” and similar idiomatic expressions such as “unless the court otherwise orders” and “unless it would be inappropriate,” must be consulted to properly understand the law, creating a significant barrier to justice for people not trained in legal research and the jurisdictional nuances of stare decisis. Although organizations like CanLII have done a wonderful job making newer case law accessible and searchable, it can be incredibly challenging for even highly educated laypeople to separate the wheat from the chaff and find relevant case law illuminating and elucidating the text of statute law.

Interestingly, these problems are often explicitly renounced by legislation intended to promote certainty and objective fairness, such as the rules of court. The Guidelines, for example, are introduced with this statement of purpose at section 1:

The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Despite their noble intent, the latter three objectives are significantly undermined by the extensive use of escape valves, often couched in frustratingly vague language, that pepper the subsequent provisions of the Guidelines and facilitate subjective fairness and single-serving justice.

To boil all of this down somewhat, in my view our legislation on domestic relations does in fact tend to yield generally fair results for most people most of the time, arguments over the correctness of social policy aside. There are, however, families for whom the legislation yields results that are unfair or very unfair, and there are more of these outliers in family law disputes than one would expect from utilitarian legislation yielding a normal distribution of fair and unfair outcomes. Our legislation anticipates, and is drafted so as to accommodate, these outliers, however in so doing: the plain meaning of the legislation becomes obscured; a critical body of uncodified case law necessarily accumulates that is external to the legislation yet must be accessed to understand it; certainty of result is diminished as complexity increases and expectations are less bounded; opportunities to pursue subjective fairness multiply, and along with them conflict and the likelihood that litigation will be required to resolve any given dispute; and, ultimately, the accessibility of family justice is significantly impaired.

In the end, the dilemma posed by the conflicting principles of objective certainty and subjective justice resolves into a question of values and priorities to which there is no easy answer.

We could adopt relatively inflexible legislation of the X equals Y variety, which offers very little room for judicial discretion but results in a correspondingly higher degree of certainty. A separating couple would be able to read the legislation and determine the range of likely outcomes, without needing to read the case authorities except to seek explanations. A limited range of potential outcomes would reduce opportunities for conflict and the likelihood that unreasonable positions will be adopted. Separating couples would be more able to resolve legal disputes without the need for costly court proceedings. Pressure on the system would ease and more judicial time could be given to non-adversarial processes. Frankly, it’s not hard to imagine simplified versions of the Guidelines and Advisory Guidelines that admit of fewer opportunities to escape their presumptions, mathematical approaches to the division of matrimonial property that are more determinate, or even automated dispute resolution systems that at least provide a starting point for settlement discussions where disputes aren’t resolved completely.

Unfortunately, the rigidity inherent in such an approach will damn those individuals stuck in the fat tails of family law to their unfair or very unfair results, with little opportunity for redemption. The approach is poorly compatible with the principle that decisions about the post-separation care of children must be based on their best interests as well. It may stifle innovation and the evolution of the law. It also conflicts with the shrill yet compelling demand for custom-fit outcomes. Justice will be accessible, although it may not be just.

On the other hand, we could have a system much like that we already have, which generously accommodates individuals stuck in the tails and their pleas for subjective fairness. However, excessive deference to demands for custom-fit outcomes raises critical barriers to justice. Such an approach demands complexity, often becoming involute to an extraordinary degree, resulting in systemic inefficiencies and unintelligible legal principles; it exacerbates conflict in the highly emotional circumstances of family breakdown, depleting family resources and risking serious long-term harm to children; and, it diminishes the likelihood that someone without counsel will achieve a fair result even at trial, a concern raised by Justice Victoria Gray in her paper on litigants without counsel and the judicial system.

Although there may be a hybrid approach which lies somewhere in the middle of these two options, it is clear that the present system is inordinately complex, requires enormous funding to maintain, and is largely inaccessible to litigants without counsel at a time when such litigants are flooding the courts. I fear that efforts toward reform which are conducted without a radical reexamination of our fundamental assumptions about the expression of social policy and the nature of family justice will produce results no better than what we have at present.

The tension in the justice system between the law that is good for the group and the law that is good for the individual reaches a critical mass in family law disputes as the call for bespoke justice is so clear in such cases. However, the emphasis on subjective fairness and individual exceptionalism in family law matters comes at a very high price and it is not at all clear that the benefits to the individual outweigh the psychological, social, legal and economic cost of complexity. As we deliberate on the barriers to justice and explore avenues of improvement in the age of the litigant without counsel, it seems to me that we need some degree of resolution to the debate on the extent to which complexity in family law matters is necessary or desirable, and the extent to which complexity is compatible with an accessible system of family justice. Should we accept some impairment of the needs of the few on the condition that such vitiation redounds to the benefit of the many, or should the needs of the few prevail at the risk of access to justice for all? Should family justice be designed for we or just me?

This post originally appeared on Slaw.

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Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

Mon, 01/12/2015 - 9:00am

By: Shaun Fluker

PDF Version: Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

Case Commented On: Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737

This is a run-of-the-mill judicial review decision by Justice Don Manderscheid in early December. The decision reviews statutory interpretation conducted by the FOIP Commissioner acting under the Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25 (FOIP Act) to settle a dispute between Alberta Treasury Branches (ATB) and the Alberta Union of Provincial Employees (AUPE) over the obligation of ATB to disclose certain bargaining unit information to AUPE. While there is nothing particularly unusual about this case, it does provide a good platform from which to revisit some of the fundamentals in judicial review as we enter 2015. This post first describes the legal issues in this case, and then summarizes how Manderscheid J. resolves them. I conclude with some thoughts on the developing presumption of deference in substantive judicial review post-Dunsmuir.

The Dispute between ATB and AUPE and the Commissioner’s Ruling

In March 2010 the AUPE requested information from ATB on employees who were excluded from the bargaining unit. ATB refused to disclose the information on the view that such records were exempt from disclosure under section 4 of the FOIP Act. The relevant portion of section 4(1)(r) states: “This Act applies to all records in the custody or under the control of a public body . . . but does not apply to a record in the custody or control of a treasury branch other than a record that relates to a non-arm’s length transaction between the Government of Alberta and another party.” The Freedom of Information and Protection of Privacy Regulation, Alta Reg 186/2008 designates ATB as a public body subject to the FOIP Act disclosure obligations. However ATB’s position was that the bargaining unit information requested by AUPE is in the custody or control of a treasury branch, and thus exempt from disclosure under section 4(1)(r) of the Act. The AUPE subsequently asked the FOIP Commissioner to rule on the issue.

As all first year students learn in our legislation fundamentals course, the first step in statutory interpretation is to isolate the interpretation problem(s) in the case. Which word(s) or phrase requires interpretation? The goal of the statutory interpretation exercise is to decipher the intention of the legislature as to the meaning and effect of the words in question. Consideration is given to the literal reading of the words, their context, and the overall purpose of objective of the legislation.

The crux of this dispute involves interpreting the meaning of ‘treasury branch’ in section 4(1)(r) of the FOIP Act. In particular, does this phrase include all aspects of the ATB operations, including the corporate and administrative functions relevant here? If it does, then presumably the clause provides a full exemption to ATB from the disclosure requirements in the FOIP Act. If it does not, then the operations of ATB outside of a treasury branch are subject to the disclosure obligations as a designated public body.

One wrinkle in the interpretation issue is that ‘treasury branch’ is defined in several enactments. Under section 1(k) of the Alberta Treasury Branches Act, RSA 2000, c A-37 ‘treasury branch’ means “a treasury branch established under section 10, whether the branch carries on business with the public directly or serves as an administrative or head office.” Section 10 further states that Alberta Treasury Branches may establish and operate treasury branches at any location within Alberta. The most important provision for interpreting the term in the FOIP Act would be section 28(1)(ddd) of the Interpretation Act, RSA 2000, c I-8 which states that in any enactment ‘treasury branch’ means a treasury branch as defined in the Alberta Treasury Branches Act.

The definition in section 28 of the Interpretation Act applies to all other Alberta legislation. However, ATB argued that another legislated definition of ‘treasury branch’ is in force, and it is in a transitional provision of the Alberta Treasury Branches Act, SA 1997, A-37.9 which states in section 36(3) that a reference in any enactment to “treasury branch” shall be read as a reference to “Alberta Treasury Branches”.

The question of law for the FOIP Commissioner was to interpret and reconcile these various provisions in order to establish the scope of the disclosure exemption in section 4(1)(r) of the FOIP Act. In Decision F2012-09 the Commissioner considered the relevant provisions of the Alberta Treasury Branches Act and concluded the legislation expressly makes a distinction between a treasury branch and the corporate entity of Alberta Treasury Branches. The two terms are not synonymous – the corporate entity establishes treasury branches and is not a branch itself (F2012-09 at paras 16-25). In Supplemental Decision F2013-D-01 the Commissioner considered the transitional provision in the 1997 legislation. A literal reading of that section would suggest ‘Alberta Treasury Branches’ is synonymous with ‘treasury branch’ in any enactment. However the Commissioner favored a purposive and contextual reading to conclude the 1997 transitional provision was not intended to apply to the current ATB regime, but rather the legislature intended this transitional section to apply to references to the former branch of the Treasury Department known as the Government of Alberta Treasury Branches to ensure legal interests transitioned from this prior structure to the new corporate ATB entity established at that time. The Commissioner cited Alberta court decisions that support this reading and further noted that if section 36(3) of the 1997 legislation applied literally today, it would be in conflict with the definition of ‘treasury branch’ in the Interpretation Act; accordingly if the literal reading was intended, the legislature would have seen fit to address this conflict.

The Commissioner also had to address previous Orders under the FOIP Act that had confronted the same interpretive problem but had ruled that the reference to ‘treasury branch’ in section 4 of the FOIP Act did include both the corporate offices of ATB as well as the treasury branches established by ATB, and which had also cited the 1997 transitional provision as support for this conclusion. The Commissioner essentially just disagrees with earlier Orders, but also notes these earlier Orders do not run through the same interpretive analysis of the various legislated definitions of ‘treasury branch’ (Decision F2012-09 at paras 30-33).

Judicial Review Application Dismissed

Justice Manderscheid decides three issues in his judicial review decision: (1) what is the applicable standard of review? (2) Did the Commissioner err by ruling the 1997 transitional provision does not apply to the interpretation of section 4(1)(r) of the FOIP Act? (3) Did the Commissioner err by ruling that section 4(1)(r) of the FOIP Act does not provide ATB with an exemption from disclosure obligations on the AUPE request? In short, he concludes the standard of reasonableness applies to the Commissioner’s decisions in (2) and (3) above and that both decisions are reasonable. ATB’s judicial review application is dismissed.

As I noted at the outset, there is nothing particularly unusual with this result. But the decision does provide an opportunity to revisit some fundamentals in substantive judicial review.

The Applicable Standard of Review

The first step in substantive judicial review under Canadian administrative law is to identify the standard of review applicable to the question or questions in the impugned statutory decision. Since the Supreme Court of Canada’s 2008 decision Dunsmuir v New Brunswick, 2008 SCC 9, the choice of standard is either correctness or reasonableness.

Under the correctness standard the reviewing court affords no deference to the statutory decision-maker and effectively conducts a de novo assessment by answering the issue or issues itself (Dunsmuir at para 50). If the court agrees with the findings of the statutory decision-maker the impugned decision survives judicial review, but if the court disagrees with the findings then the impugned decision is set aside or varied to correct the error.

Under the reasonableness standard the reviewing court defers to the statutory decision-maker and limits its review to an inquiry as to whether the impugned decision is intelligible, transparent, and justified, as well as within the range of possible outcomes given the applicable facts and law in question (Dunsmuir at para 47). The application of this standard is less straightforward than correctness: the determination of whether an administrative decision intelligible, transparent and justified is a necessarily a subjective exercise. One characteristic of a reasonableness review that does seem more concrete however is that the court should limit its review to assessing the adequacy of the reasons provided by the statutory decision-maker.

In Dunsmuir the Supreme Court of Canada attempted to simplify the standard of review selection process by making a series of declarations on which standard usually applies to a particular category of question (Dunsmuir at paras 51-61). We were told the correctness standard will apply to questions involving constitutional law, questions of law important to the legal system generally and outside the specialization or expertise of the statutory decision-maker, questions of law that engage the jurisdiction of more than one statutory regime, and ‘true’ questions of jurisdiction whereby the statutory decision-maker must ask whether it has the authority to pursue the line of inquiry. And we are told the reasonableness standard will apply to questions of fact, questions that engage primarily with policy, questions laden with discretion, and questions of law within the ‘home’ statute(s) and expertise of the decision-maker.

The identification of the applicable standard of review thus requires a good understanding of how to differentiate between questions of law, questions of fact, and all related iterations between and surrounding these extremes. Dunsmuir also confirmed that precedent is established on the applicable standard of review for a particular decision-maker in relation to a particular type of decision or question (Dunsmuir at para 62).

An applicant in judicial review who seeks to have the statutory decision set aside or otherwise varied will usually assert that correctness be applied as the standard of review. And in this case ATB argued for correctness on the basis that the Commissioner’s decision engages in the interpretation of statutory provisions which are outside of her specialization, and also that the interpretation of the scope of the disclosure exemption is a true question of jurisdiction.

The respondent in judicial review who seeks to defend the statutory decision will usually assert that reasonableness be applied as the standard of review, such that the reviewing court affords deference to the decision and making it less likely the court will interfere with the decision. And in this case the AUPE argued for reasonableness on the basis that the statutory interpretation in the Commissioner’s decision is conducted within the overall FOIP regime. Even though the Alberta Treasury Branches Act is not expressly within the ‘home’ turf of the Commissioner, the interpretation here is connected to the question of disclosure.

Justice Manderscheid canvasses Dunsmuir and earlier Alberta cases concerning the standard of review applicable to FOIP decisions, and based on this jurisprudence he rules the standard of review applicable to the Commissioner’s decisions is the deferential reasonableness standard (at paras 26 – 40). In particular, he agrees with the AUPE that the Commissioner is entitled to deference on the interpretation of home legislation as well as legislation that is encountered in the course of FOIP issues. He also rejects the ATB argument that the application of the section 4 exemption is a jurisdictional issue, noting that ‘true’ questions of jurisdiction are rare concerning the interpretation by a statutory decision-maker of its home statute (at para 39).

These findings on standard of review are not only consistent with the overall trend in existing jurisprudence concerning the judicial review of FOIP decisions, but are also consistent with the trend towards reasonableness as the standard of review generally in substantive judicial review of statutory interpretation by administrative decision-makers. Some post-Dunsmuir Supreme Court of Canada decisions have asserted there is now a presumption that the standard of review is reasonableness concerning the interpretation by a statutory decision-maker of its home statute and related legislation.

The Presumption of Deference

The notion of a employing a presumption of reasonableness to simplify the standard of review determination was first suggested by Binnie J. in Dunsmuir at para 146, however the majority of the Supreme Court did not concur with him. Then in 2011 Justice Rothstein, this time writing for the majority in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, wrote that the principle of judicial deference asserted in Dunsmuir had evolved to the point where there is a presumption the standard of review is reasonableness where a statutory decision-maker applies and interprets its home statute (at para 39). In another 2011 Supreme Court of Canada decision Justice Fish, writing for the majority in Smith v Alliance Pipeline, 2011 SCC 7, agreed that Dunsmuir had established that the reasonableness standard will usually apply when a statutory decision-maker is interpreting and applying its home statute (at para 28).

Madam Justice Deschamps wrote concurring opinions in both Alberta Teachers’ Association and Alliance Pipeline. Her divergence from the majority in both decisions rested on the view that judicial deference is based upon the principle of relative expertise or experience in a particular area, and thus this bare assertion of a presumption of deference simply because a statutory decision-maker is interpreting its home statute pays too little attention to whether the statutory decision-maker actually has sufficient expertise or experience to justify deference to its determination of a legal question (See Alliance Pipeline at para 80 and Alberta Teachers’ Association at paras 82 – 89).

More recent Supreme Court of Canada jurisprudence continues to use the language of a presumption of reasonableness. In McLean v British Columbia (Securities Commission), 2013 SCC 67, Justice Moldaver restated the presumption that a statutory decision-maker’s interpretation of its home statue will attract the reasonableness standard (at paras 20 – 24). And it is apparently a very strong presumption, demonstrated by how the Court described the onus on an applicant seeking to challenge the statutory interpretation given by a decision-maker to its home statute (at paras 40, 41):

The bottom line here, then, is that the Commission holds the interpretative upper hand:  under reasonableness review, we defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist.  Because the legislature charged the administrative decision maker rather than the courts with “administer[ing] and apply[ing]” its home statute (Pezim, at p. 596), it is the decision maker, first and foremost, that has the discretion to resolve a statutory uncertainty by adopting any interpretation that the statutory language can reasonably bear.  Judicial deference in such instances is itself a principle of modern statutory interpretation.

Accordingly, the appellant’s burden here is not only to show that her competing interpretation is reasonable, but also that the Commission’s interpretation is unreasonable.  And that she has not done.  Here, the Commission, with the benefit of its expertise, chose the interpretation it did.  And because that interpretation has not been shown to be an unreasonable one, there is no basis for us to interfere on judicial review — even in the face of a competing reasonable interpretation.

And finally for present purposes, Justice Rothstein wrote for the majority in Canadian National Railway v Canada (Attorney General), 2014 SCC 40, and he again asserts that there is a presumption of reasonableness that applies to the interpretation of home statutes and other legislation related to the function of a statutory decision-maker (at para 55).

While these more recent decisions confirm that a presumption of reasonableness applies, they suggest the presumption rests on the need to demonstrate some expertise or familiarity on the part of the statutory decision-maker. However it remains to be seen just how rigorous the Court will be on what it takes to establish such expertise. It seems most likely to me that the threshold to establish expertise will not be a high one, and thus the fact a decision-maker is interpreting its home statute or related legislation will be enough to invoke the presumption of reasonableness as the standard of review.

Some Concluding Thoughts

This decision by the FOIP Commissioner was a paradigm candidate for the presumption of judicial deference. The interpretive problems were located outside of the FOIP Act, but nonetheless strongly connected to the application of the FOIP regime. Moreover, there are several judicial review decisions which also indicate reasonableness is the standard to review statutory interpretation by the FOIP Commissioner. Despite this, it appears both ATB and the AUPE expended significant time and energy arguing over what the applicable standard of review would be in their case. Unfortunately, I think a similar observation can be made in most judicial review proceedings today. Most would likely agree that the Dunsmuir decision itself did little to simplify matters in substantive judicial review.

Perhaps it is folly to expect substantive judicial review to be a simple exercise, since at its core the review must both acknowledge and respect the exercise of legal authority by statutory officials while at the same time ensure such authority is legitimate under the rule of law. It may be that employing a presumption of deference risks overlooking important context or the subtle wrinkles that may arise in the exercise of public power by statutory officials.

In this case for example, one might suggest Justice Manderscheid ought to have been more intrusive in his review and given stronger consideration to ATB’s argument that the Commissioner erred in law by failing to follow the earlier interpretations set out by a previous FOIP Commissioner. Justice Manderscheid touches on this argument only at the very end of his judgment by (1) simply declaring that the Commissioner’s decision not to follow these earlier interpretations was reasonable (at para 83); and (2) stating that in any event the doctrine of stare decisis does not apply to administrative tribunals such that the Commission is entitled to completely depart from an earlier interpretation (at para 84).

It is here where Manderscheid J.’s analysis might raise some eyebrows. Can we so readily abandon consistency in legal decision-making and still purport to be functioning under the rule of law? Stating that administrative decision-makers such as the FOIP Commissioner are entitled to alter precedents or completely depart from an earlier interpretation of legislation – as Justice Manderscheid states here (at para 84) – was perhaps tenable in a legal system that did not employ a strong presumption of deference to substantive legal findings made by these persons. It seems more problematic in a legal system that gives administrative decision-makers the power to make final and binding determinations of law when they interpret and apply their home legislation. But the application of judicial deference and the reasonableness standard of review should – and did – constrain the extent to which Justice Manderscheid explores this issue.

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The Website of the Alberta Courts

Fri, 01/09/2015 - 9:00am

By: Nigel Bankes, Jennifer Koshan, and Jonnette Watson Hamilton

PDF Version: The Website of the Alberta Courts

Matter Commented On: The Alberta Courts’ website

This post deals with Court websites. We are posting it now because all three Alberta Courts have just made a significant change in their practice. At the beginning of this week (January 5, 2015) they announced that they will no longer post judgments on their own website. Instead, users are referred to CanLII for copies of recent judgments. Here is the notice that you will find on the ABQB and ABPC websites:

A collection of the judgments of the Court of Queen’s Bench of Alberta is available from CanLII. The official version of the reasons for judgment is the signed original or handwritten endorsement in the court file. If there is a question about the content of a judgment, the original court file takes precedence. Copies of the original judgment may be obtained on payment of the applicable fee, by contacting the relevant court location.

You are about to leave the Court of Queen’s Bench of Alberta website. The Court of Queen’s Bench of Alberta is not responsible for the content of any external website.

Queen’s Bench judgments on CanLII

The Court of Appeal has yet to implement this decision but anticipates doing so in the near future.

We are given to understand that, while this move has been made to conserve staff time and reduce technology costs the Courts will continue to update the judgment databases — but henceforward the databases will only be available to internal users on the Courts’ intranet. We also understand that the decisions of the Courts will be sent to Can LII on a daily basis, and that there should not be a significant time lag in accessing them on Can LII.

In making this move the Alberta Courts are following the practice of some other Canadian courts, including those in Saskatchewan, Manitoba and Newfoundland and Labrador.

ABlawg is a strong supporter of Can LII, and was one of the first blogs to participate in Can LII Connects. However, we think that there is a case to be made for Courts maintaining their own publicly accessible judgment databases, as well as contributing to open source databases such as CanLII.

What is that case? We think that a website offers any entity, including the different branches of government, the opportunity to communicate to the public about who they are and what they do. The practice of rendering public judgment is a central part of what a court does and should be celebrated. Many courts do just that, both in Canada and internationally. For Canadian examples, see the websites of the Courts of British Columbia and Nova Scotia. The website of the former includes an easily accessible “Recently Released Judgments” for both superior courts that lists the courts’ most recent decisions and a one sentence summary of the issue(s) dealt with by the court. The website of the latter includes, on their Court Decisions page, a list of “Today’s Releases” by five different levels of court. The Courts of Nova Scotia website also includes webcasts of court proceedings, among numerous other features.

Some courts even go beyond this content and use their websites to make additional materials available to the public, including appellate factums, transcripts, podcasts and in some specialized cases the pleadings. Examples here include the Supreme Court of Canada, the High Court of Australia, the Supreme Court of the United Kingdom (where it appears you can even rent the Court for special events; see “Venue Hire”!), and the International Court of Justice. In the case of the Australian and UK courts, these websites are additional to the open source databases AustLII and BAILII.

Of course these initiatives may not be appropriate to all levels of Court; we are not advocating any particular approach. But what we are saying is that a website is a crucial means of communication between the Courts and the public. A Court’s website conveys something about how accessible that Court is, or how accessible it wishes to be perceived to be. It says something about how central it sees the work of written decision-making and the dissemination of that work.

The message that the Alberta Courts send with the notice quoted above is that, while judgments may be central to who they are and what they do, they will leave it to others to publish those decisions and to be responsible for them. We think that that’s a shame. It’s even more of a shame if the Courts continue to maintain and update the database for their own use, since that suggests that any cost savings will be marginal at best.

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A Methodology for Beginning Fundamental Justice Reform

Tue, 01/06/2015 - 9:00am

By: John-Paul Boyd

PDF Version: A Methodology for Beginning Fundamental Justice Reform

Discussion on the reform of civil justice in Canada reached a new crescendo last year with the publication of the various reports of the national Action Committee on Access to Justice in Civil and Family Matters and the initiatives that have popped up here and there across the country, and continue to pop up, as a result. An enormous amount of learned discussion on justice processes, barriers to justice, the meaning of access to justice, potential solutions and reform processes is available on websites of organizations like the Canadian Forum on Civil Justice, Slaw and the Canadian Bar Association.

As the various initiatives move forward, the issue of reform processes has in particular taken on a new importance. The reasons for this are fairly straightforward: the rules and principles of the English common law justice system are 900 years old and somewhat hidebound as a result; the system engages a significant number of influential stakeholder groups that must be convinced to support efforts toward substantive reform; the system is managed by a dense bureaucratic administrative structure laden with regulations, politics and vested interests that must be reorganized and reenergized; and, the system itself is incredibly expensive, as are the cost of mistakes and false starts. The process most likely to be successful must be one that is capable of reconciling these intransigent, obdurate circumstances and achieving broadly supported change. At present, the most promising reform process available is the social lab approach, which has been eloquently written about by people such as Nancy Cameron and Nicole Aylwin.

I won’t reiterate what Nancy and Nicole have said; they’re both very articulate writers who have described the concept better than I could, and you really should read their articles. (Nicole’s article, incidentally, has lots of helpful links to related resources.) Suffice it to say that the social lab approach attempts to mobilize the different stakeholders involved in a particular social issue to collaboratively implement prototypes of new processes which are continuously refined in an iterative cycle of evaluation and adaptation. This is all very well and good, and the social lab approach is likely one of the very few means of achieving the large-scale reform of intractable social problems in a manner that is neither coercive nor unpleasantly prescriptive. It’s also the approach being used in Alberta’s Reforming Family Justice Initiative, which Diana Lowe has succinctly described.

Some concerns

I am, however, worried that the social lab approach might circumscribe our ability to be genuinely creative in developing new approaches to systems that are complex, multidisciplinary and massive, like the justice system, and involve multiple stakeholders with varying commitments to reform. The implementation > evaluation > feedback > adjustment > re-implementation loop required by the prototyping methodology strikes me as being limited to taking the bits and pieces of existing systems and rearranging them, albeit in innovative, novel ways. There may be some aspect of the social lab process that I have failed to grasp, but it seems to me that the approach may be incapable of contemplating a fundamental redesign of established complex systems; rather than being a renovation that takes the house back to the studs and starts over, the prototyping approach seems to be limited to reconfiguring the furniture and testing new arrangements. I raise this point as it is not at all clear to me that the way we manage disputes within the present family justice system has any necessary or intrinsic merit. While I suspect there will always be a need for authoritarian and perhaps adversarial court processes to address truly difficult individuals and problems of immediate urgency, I am concerned that a proper reconceptualization of the system may require more than triage processes and the co-location of social services, both of which are really not much more than reconfigurations of existing protocols and resources, and may demand:

  • a fundamental reconsideration and reappraisal of our basic assumptions; and,
  • a critical examination of alternatives such as inquisitorial processes, abridged trial procedures, non-adversarial judging techniques, the embedding of mental health professionals in decision-making processes, mediation-ligation hybrid processes and so forth.

A social lab approach may be the most effective way to pilot new ideas and new procedures once this reconceptualization has taken place, but I suggest that it may not be suitable to reforms addressing the fundamental underpinnings of family justice processes, assuming of course that these processes need to be addressed at all.

A potential methodology

In light of my concerns with the social lab approach, and given that the usual alternatives to that approach are, for the reasons pointed out by Nicole, unworkable for the purposes of justice reform, the next step must be to discover the process that will work if we are to develop a completely new way of doing family law. I do not pretend to have the answer, but I do have a suggestion.

I think that first there needs to be some really big-picture brainstorming. I would hand-pick a dozen of the best and the brightest thinkers on family justice, focussing on people with practical experience in the trenches who are genuinely creative, out-of-the-box thinkers with a deep understanding of justice issues and family law. I’d send them off to a secluded place outside of Banff with a box of notepads, whiteboards, markers, the best research currently available on family breakdown and its sequelae, and a case or two of good wine, with instructions to come up with a comprehensive outline of a new family justice system, complete with workflows, processes and rules, applying no preconceptions that any aspect of the current system needs to be or should be retained, and I would tell them to keep at it until they reach a consensus about a completely new model of family justice.

When they’re done, I’d bring them back, and get them to write up their model in two statements, a technical draft for legal professionals, government and others involved in the system and another in plain language for the public and the media. I would take a year with the group criss-crossing the province talking to the bench, bar, community groups, court staff, social workers, counsellors, advocates, social service agencies and so on to collect feedback, correct problems and foster buy-in. The group would then issue a final statement on the new system that reflects the insights gained from touring the province. This, by the way, is more or less the approach taken by Professors Rollie Thompson and Carol Rogerson between the release of their first draft of the Spousal Support Advisory Guidelines in 2005 and the release of the final draft in 2008, and it worked wonderfully well.

I would then put the final statement into the care of a larger, more comprehensive group of stakeholders for implementation in one justice centre, using the social lab approach to prototyping and the iterative evaluation and adaptation of new processes. When the new model seems to be more or less functional, I’d roll it out to other justice centres and their local stakeholders for the same process of evaluation and adaptation, tailoring the implementation of the model to the particular needs of each community.

The point of all of this is to achieve a redesign of the family justice system from the ground up, by putting aside our current assumptions about family breakdown, and how the disputes arising from family breakdown should be managed, and starting afresh in a principled manner supported by research. Family justice is, you see, fundamentally different than any other branch of civil justice. We should not and must not handle the legal issues arising from family breakdown as we do those arising from shareholders’ grievances, motor vehicle accidents and wrongful dismissals.

Just an idea.

This post originally appeared on Access to Justice in Canada.

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Expert Reports: Are They Inherently Material Evidence?

Mon, 01/05/2015 - 9:00am

By: Camille Sehn

PDF Version: Expert Reports: Are They Inherently Material Evidence?

Case Commented On: E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 396

This summer I posted a comment on a successful application to stay the Queen’s Bench decision of the Honorable Mr. Justice G.C. Hawco, which reversed a Permanent Guardianship Order (“PGO”) made by the Provincial Court at trial. On the hearing of the appeal of the Director of Child and Family Services (“the Director”) of Justice Hawco’s decision, there were several issues raised surrounding the expert reports that were entered as evidence at trial and relied upon in Justice Hawco’s decision, but not relied upon in the trial decision of the Honorable Judge L.T.L. Cook-Stanhope. This post will comment upon the Court of Appeal (Justices Côté, Rowbotham and Jeffrey) decision on those issues.


The background to the appeal is outlined in greater detail in the decision and my earlier post, but it is important to highlight several important developments within the case which began at trial. There were two reports entered as evidence by counsel for the parents, the reports of Ms. Debra Harland and Dr. Sonya Vellet, which were then withdrawn during trial. The authors of these reports were not called as witnesses, therefore not available for cross-examination, and counsel for the parents confirmed to Judge Cook-Stanhope that the parents were not intending to rely on them.

However, the reports were admissible, remained on the record, and were referred to in questioning of the only expert witness called, Dr. Rosalyn Mendelson. The first issue that arose on appeal with respect to these reports was whether Justice Hawco erroneously relied on them on appeal. The Court of Appeal concluded that Justice Hawco did rely on the reports, and should not have (at para 31). Secondly, the Court of Appeal discussed whether such reports would constitute material evidence which, if disregarded at trial, would be a reviewable error. Ultimately, the Court clarified that these reports were not material evidence, and that Judge Cook-Stanhope was correct to not address them in her reasons (at para 35).


These reports, and the way in which they should be dealt with, bring up several issues related to the weight of expert evidence and the level of deference to a trial judge on appeal. Without a jury, the judge assumes the role of the trier of fact. If the reports had been withdrawn from a jury trial, the jury would not be able to rely on them. The expert witness role, and the reason for a higher standard of qualification of these experts as opposed to lay witnesses, is that their evidence is not entered for the truth of its contents (at para 21); there is probative value in expert opinions that can assist the trier of fact in making inferences. The trier of fact still has the discretion, absent an overriding and palpable error, to choose which evidence he or she prefers, including which opinions and inferences are preferable (at para 37).

Counsel for the children suggested that Justice Hawco was entitled to reweigh the evidence presented at trial, but the Court of Appeal confirmed that the standard of review for an appellate court does not allow that court to substitute its own view by re-weighing the evidence absent an error in principle or a correct finding that the trial judge had disregarded material evidence. Since the reports were not material, and there was no error in principle (at para 45), the decision of Judge Cook-Stanhope to grant a PGO was restored.

This decision confirms that the level of deference in weighing expert opinions remains very high. If Ms. Harland and Dr. Vellet had been called, Judge Cook-Stanhope would have needed to address their testimony in her decision if she was disagreeing with their opinions, but would not have been required to place any greater weight on those opinions. Without the opportunity for cross-examination and, further, without counsel for the parents specifically relying on the reports, they were not material evidence (at para 45). This is despite the fact that they were expert reports.

However, the Court also indicated (at para 44) that in this case, the issue is not even whether the trial judge preferred the evidence of one expert over another. Essentially, there was only the expert evidence of Dr. Mendelson available at trial. While the reports were completed by experts and remained on the record as admissible evidence, the Court of Appeal reveals in this decision that it is not only the qualification of an expert that has a higher threshold, it is also the presentation of that expert’s evidence that has a high threshold in order to be material evidence. Without an opportunity to cross-examine an expert on their report, it seems that evidence contained within the reports should have no probative value.

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The Top Ten Canadian Legal Ethics Stories – 2014

Fri, 01/02/2015 - 9:00am

By: Alice Woolley

PDF Version: The Top Ten Canadian Legal Ethics Stories – 2014

For the last two years I have written up the “top ten” Canadian legal ethics stories for the prior year (2013 and 2012). This year I initially wondered whether it would be possible to identify ten important legal ethics stories. It wasn’t. Moreover, it is fair to say that some of these stories now justify the descriptor “saga,” making their third consecutive appearance on the list.

It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the “Top Ten” descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “Ten Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with “Top Ten.”

  1. Trinity Western’s Approval Revoked

On December 11, 2014 the British Columbia Minister of Advanced Education revoked the consent it had previously granted to Trinity Western University to open a law school. It did so based on the “current uncertainty over the status of the regulatory body approval” for the law school (CBC, December 11 2014). That uncertainty arose from the decisions by the law societies in British Columbia, Ontario, New Brunswick and Nova Scotia either not to approve the admission of graduates of Trinity Western or to do so only conditionally. My overview of the regulatory history of Trinity Western’s proposal, and the issues it raises, is here. Elaine Craig’s article from June 2014 on TWU is here. SLAW blog posts on Trinity Western from 2014 can be found here, here, here, here and here.

The Trinity Western law school proposal is one of the legal ethics sagas. It has raised significant issues in legal ethics, particularly in relation to the effectiveness of the Federation of Law Societies (whose approval process was in the end not treated as binding or even given much weight); the scope of anti-discrimination and protection of diversity with respect to admission to the profession; the role of the law societies in determining that scope and protection (as opposed to, say, human rights commissions); the process used by law societies to consider Trinity Western’s application; and, finally, the role of law societies in regulating the content of legal education.

It is also a saga likely “to be continued” in the next few years: if Trinity Western proceeds with its various applications for judicial review of its law school, and if it succeeds in those applications, either procedurally or substantively, then this matter will end up back before the Minister of Advanced Education and, perhaps, the law societies.

  1. Settlement of the complaint against Lori Douglas

On November 24, 2014 the Canadian Judicial Council stayed its investigation into the conduct of Associate Chief Justice Lori Douglas in consideration for her agreement to retire effective May 2015. As noted in an article on, the investigation into ACJ Douglas had been ongoing for four years and cost approximately $3 million. The legitimacy of the investigation was – and continues to be – fiercely criticized. Most recently critics focused on the CJC’s insistence on viewing the pictures of ACJ Douglas, even though the basic content of those pictures was widely known (see, e.g., Blatchford, Drummond #1, Drummond # 2, Open Letter).

The settlement agreement prevents the continuation of proceedings that seemed most unlikely to reach any satisfactory and fair conclusion given the muddied issues they raised – was the issue the failure to disclose the existence of the pictures on her written application for appointment? Was it Douglas’s alteration of her personal diary once the investigation commenced? Or was it the existence of the pictures themselves? A letter written by Norman Sabourin in response to an Open Letter criticizing the CJC suggests all of the above.

The agreement also means, however, that the significance of online sexual pictures to future judicial applicants remains unclear. Do prospective judges need to disclose the existence of pictures that are on the web? Do they need to disclose the existence of pictures that may be put on the web at some future time? Does disclosure depend on the likelihood that the pictures will end up on the web? What, ultimately, is the burden on an applicant? From a policy perspective, given the increased prevalence of such pictures in a digital age, what would the effect of compulsory disclosure of such pictures be on applications by women to the bench relative to men over the longer term? These are questions that merit further consideration and clarification.

  1. The Canadian Bar Association Futures Report

In August 2014 the Canadian Bar Association published the report of its Legal Futures Initiative, Transforming the Delivery of Legal Services in Canada. The result of extensive consultation and research, the Report offered a considered assessment of issues and challenges facing the legal profession, and made recommendations for changes to the regulation and education of Canadian lawyers. The most controversial of those recommendations are those supporting liberalization of the legal services market and that lawyers be permitted to practice in “Alternative Business Structures”. Specifically, the Report recommended that “Lawyers should be allowed to practise in business structures that permit fee-sharing, multi-disciplinary practice, and ownership, management, and investment by persons other than lawyers or other regulated legal professionals” (Recommendation #1, p. 35). It also recommended regulatory changes to permit effective rather than direct supervision of non-lawyers (Recommendation #4, p. 42), fee-sharing with non-lawyers (Recommendation #5, p. 43) and compliance-based entity regulation (Recommendation #8, p. 47).

The merits of the CBA’s proposals can be debated. The regulatory changes they propose are, in some cases, themselves top ethics stories from the year, as discussed below. But of independent significance is the fact that the CBA has been willing to engage in this process, and to take positions that challenge the regulatory status quo. There is nothing modest or timid about the CBA’s approach. When faced with a similar opportunity the American Bar Association ducked, declining to consider any liberalization to the rules preventing non-lawyer ownership (see James Moliterno’s criticism of the ABA 20/20 Commission, here but also some debate on Moliterno’s criticisms here). I am not an impartial observer– I was a member of the CBA’s Professional Regulation Futures Committee – but in my view the CBA is to be commended for its initiative and openness to new ways of regulating the profession.

  1. Alternative Business Structures

As noted, one of the key recommendations of the CBA was to permit alternative business structures (ABS), law firms that are owned, at least in part, by non-lawyers. In September the Law Society of Upper Canada released its Discussion Paper Alternative Business Structures: The Future of Legal Services, seeking input from its membership about whether, and to what extent, alternative business structures ought to be permitted.

The debate around ABS focuses on their risks and rewards, with opponents suggesting that ABS pose significant risks to lawyers’ integrity and their provision of services to clients, while creating few real benefits to access to justice (see, e.g., Ontario Trial Lawyers Oppose ABS; Ken Chasse on ABS).

Proponents suggest that there is evidence to support ABS’s positive effect on access to justice (Kowalski on ABS) and that, in any event, the risks posed by ABS to the legal profession ought not to be overstated (Mercer #1 and Mercer #2). The questions now are whether any law society will be willing to proceed with ABS, if so which one and if so will others follow suit?

  1. Jian Ghomeshi’s Statement of Claim

The serious criminal allegations against Jian Ghomeshi were one of the top news stories in Canada in 2014. But the allegations also had a legal ethics dimension. Specifically, was it ethical to file a statement of claim that was arguably meritless and that may have been intended to suppress legal claims against Ghomeshi? This question was debated by David Tanovich (arguing that filing such a claim is unethical) and me (arguing that, while ethically problematic, it is not improper). Howard Levitt and I have also raised questions about the sufficiency of the advice given by Ghomeshi in relation to filing the Statement of Claim.

  1. British Columbia Regulatory Task Forces

As noted, the CBA Futures Project recommended the adoption of compliance-based entity regulation. In 2012, the British Columbia Legal Profession Act was amended to give the Law Society of British Columbia the authority to regulate law firms. The Law Society has struck a task force to “recommend a framework for the regulation of law firms” (LSBC Task Force). Adam Dodek wrote a paper advocating law firm regulation in 2012 (here) and it is significant that the law societies are taking concrete steps in this direction.

Of perhaps even greater note, however, is that in December 2014 British Columbia’s Legal Services Regulatory Framework Task Force recommended that “the Benchers seek an amendment to the Legal Profession Act to permit the Law Society to establish new classes of legal service providers to engage in the practice of law, set the credentialing requirements for such individuals, and regulate their legal practice.”   The areas in which such legal service providers would be permitted to practice include family law. A loosening of the constraints on legal practice by non-lawyers may be the most significant development in increasing access to justice, particularly in family law, where it is estimated that 70% of participants are unrepresented (Julie MacFarlane, cited in Mercer #2)

  1. A2J

Access to justice continues to be a significant issue for Canadian lawyers and the public, and for good reason. As John-Paul Boyd noted in a post on SLAW on December 5th: “The present situation is, with the greatest respect, staggering. We have at hand a crisis on a national scale, affecting a system that costs governments billions of dollars a year to maintain, and yet we as a society are unwilling to allocate the few millions of dollars that are necessary to tackle the problem as aggressively as it requires” (Boyd on A2J). Two major reports on access to justice were published in 2013 (Action Committee on Access to Justice in Civil and Family Matters Report and CBA Equal Justice Report) and, as indicated by the BC task forces, the CBA Futures Report and the debate over ABS, legal regulators and the legal profession are taking the access to justice problem seriously. They are trying to remove barriers to the provision of legal services and to facilitate access to lawyers and legal services. Until some material progress is made, however, access to justice will properly remain a top legal ethics story in Canada.

  1. The Boyle Recusal

On September 4 2014, Tax Court Justice Patrick Boyle wrote a 47 page decision recusing himself from further participation in a matter in which he had previously issued a decision that was now under appeal to the Federal Court of Appeal. He did so on the basis of submissions made by the appellants and, in particular, what he felt were unfair allegations that he had been “untruthful, dishonest and deceitful” in his judgment, and what were “clear untruths” about him (see 2014 TCC 266 (para 4)). Some commentators have suggested that the factum of the appellants was not particularly unusual or out of order (Tax Judge Issues Rare Ruling in Own Defence) while others have suggested it was “unusually aggressive” and contained “ad hominem” attacks (Judge Slams Counsel, then Recuses Himself).

Whatever the ethics of counsel’s conduct, however, Boyle’s decision to engage with the merits of the case in a recusal decision raises its own ethical problems. An article reproduced on the Dalhousie Law school website quotes Professor Brent Cotter as saying “this engagement by the judge raises questions about whether impartiality has been preserved in this case” and quotes lawyer Gavin Mackenzie’s description of Boyle’s reasons as “completely unnecessary” and his suggestion that certain aspects of Boyle’s judgment “can raise a legitimate question about the civility of the judge in this case” (Was Canadian Judge’s Recusal in McKesson Out of Bounds).

The effects of Boyle’s judgment is now before the Federal Court of Appeal, who recently allowed taxpayer’s counsel to amend its grounds of appeal to include the question of whether the reasons for recusal compromised “the appearance and reality of a fair process in this case such that a new trial is necessary” (Notice of Motion). In his decision Justice Stratas said “the recusal reasons, by responding to the appellant’s memorandum of fact and law, depart from the norm. They are a new, material development in this appeal and have become part of the real issues at stake.” (2014 FCA 290 at para 11; see in general: FCA allows taxpayer motion).

  1. The Collapse of Heenan Blaikie

On February 5, 2014 the national law firm, Heenan Blaikie, announced its dissolution. Even though the firm’s economic foundations had been relatively solid, a diminution in partner earnings early in the year led to a “run on the bank” with 30 partners leaving and the firm dissolving soon after. In an article for Legal Ethics in June 2014 Adam Dodek summarized the various explanations offered for the firm’s collapse: “the inability of a mid-tier large firm to compete in the Canadian legal market; the failure of the partnership model; a clash of cultures between the Toronto and Montreal offices; a failure in succession planning, etc. In a bizarre turn, one commentator blamed law schools for Heenan’s fall, apparently on the theory that the market cannot absorb the number of Canadian legal graduates.” ((2014) 17 Legal Ethics 135 at 136). Heenan had also allegedly had internal conflicts in relation to its international practice, and in particular its involvement in transactions in Africa which may have undermined its stability (How Heenan Blaikie’s stunning collapse started with a rogue African arms deal).

From the distance of a few months the broader significance of Heenan’s collapse seems less clear; it may have been a product of broader challenges and issues in the legal services market, but it may also simply reflect pathologies specific to Heenan at that time. A determination of its broader significance perhaps awaits future events.

  1. The LPP Path to Articling

2014 saw the first entrants into Ontario’s new alternate path to articling, the Law Practice Program (LPP). The LPP has been praised as opening up the profession to law school graduates who would otherwise be precluded from practice (see, e.g., The new faces of law school). In 2013 Tom Conway, then Treasurer of the Law Society of Upper Canada suggested that the LPP may be a better form of training than traditional articling, an entirely plausible claim given the dearth of regulation of articling, and of evidence to demonstrate the quality of education it provides (as discussed by Adam Dodek, here).

The LPP has also, however, been subject to criticisms in relation to the significant increase in articling fees associated with the program, the unavailability of student loans for participants and the fact that students are not paid for practicum placements (see e.g., Articling fees and access to justice and Reality bites for LPP students). Some critics, as evidenced by the comments to the article on Articling fees and access to justice, also complain that the LPP is enabling an unjustified expansion in the number of lawyers in Ontario.

As a final note, on December 27 Canada lost a legal icon with the death of Eddie Greenspan. For good and occasionally not so good reasons, Greenspan was an outsized figure in the Canadian profession and in relation to issues of legal ethics. In the casebook I co-edit and co-author he appears in a less positive light from time to time (as the unsuccessful defendant in Stewart v. Canadian Broadcasting Corp, [1997] OJ No 2271 and as the author of a stinging and problematic 1999 National Post editorial directed at Justice Claire L’Heureux-Dubé after her judgment in R v Ewanchuk, [1999] 1 SCR 330). But Greenspan was also an ardent defender of Joe Groia in relation to the Law Society of Upper Canada’s prosecution of Groia for incivility (The horrible crime of incivility) and actively worked to improve the quality of the Canadian legal system, both for his own clients and more generally, as evidenced by his last editorial, published posthumously (Stephen Harpers’ scary crime bluster).

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ABlawg a Runner up for 2014 Clawbie

Wed, 12/31/2014 - 10:05am

The Canadian Law Blog Awards (Clawbies) for 2014 were announced this morning, and ABlawg is very pleased to have been recognized as a runner up in the category of Best Law School/Law Professor Blog. One of ABlawg’s nominees, Paul Daly’s Administrative Law Matters, took the top spot in the category this year. Our colleague Lisa Silver, who teaches criminal law, was also a runner up in the category for her Ideablawg.  And, our colleague John Paul Boyd from the Canadian Research Institute on Law and the Family – also one of our nominees – was recognized in the category of Best New Blogs for his blog Access To Justice in Canada.

We extend our thanks to all of our nominators and the Clawbie selection committee, and our congratulations to all the winners, runners up and nominees.

ABlawg looks forward to continued engagement with our readers in 2015. Happy New Year!

Ensuring Competent Representation: Know What You Don’t Know

Tue, 12/30/2014 - 10:00am

By Alice Woolley

You’ve got to know when to hold ‘em

Know when to fold ‘em

Know when to walk away

And know when to run

You never count your money

When you’re sittin’ at the table

There’ll be time enough for countin’

When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits.  Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct.  Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)).  They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).

How difficult can this be?  Quite, according to some recent media reports.  While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting?  And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?

The first case is the representation of Jian Ghomeshi by two lawyers from the Dentons firm.  As noted here – Why did Ghomeshi hire Dentons? – the lawyers who filed Ghomeshi’s (now withdrawn) civil claim against the CBC were a partner specializing in “commercial litigation and insolvency” and a senior associate “with experience in real estate, employment, defamation and fashion.”  The dubious merits of that claim have been widely discussed (see, e.g., here: Levitt on Ghomeshi).   More concerning, however, is the admission in the Claim that Ghomeshi engaged in “sado-masochism”, an admission Ghomeshi also made in his statement on Facebook (which counsel may or may not have reviewed before it was posted – Ghomeshi FB post).  It is hard to see how either the Claim or Facebook post advanced Ghomeshi’s legal interests and it is quite easy to see how each may ultimately injure those interests given that “when it comes to BDSM – or at least its more intense versions – the law doesn’t actually care about consent.” (See: Cossman on Consent).

The second case arises from a lawsuit brought – ironically enough – against Ghomeshi’s new counsel, Marie Heinen, and another criminal defence laywer, Steve Skurka.  Skurka and Heinen have been sued by their former client Nathan Jacobsen in part because of their representation of him in a US criminal trial.  A December 5, 2014 article in the Globe and Mail noted that Jacobsen’s original guilty plea in the US was struck out, and that his American counsel argued that Jacobsen has received “ineffective assistance of counsel”.  It also reported that in testimony in the US proceeding, Skurka stated “We were hammered by the fact, Ms. Henein and I, by the fact that there were different discovery rules than we had in Canada.” (Globe and Mail, December 5 2014)

Heinen and Skurka are not the first Canadian lawyers to be criticized for their handling of a US criminal case.  Eddie Greenspan’s representation of Conrad Black several years ago was criticized not only by Black, but also by journalists, although the journalists were not necessarily prepared to see Greenspan’s representation as the cause of Black’s problems:  “This wasn’t Eddie Greenspan’s finest hour. But it is stingingly absurd to suggest that Conrad Black was done in by his lawyers. He was done in by the facts.” (E.g., Wells on Black and Greenspan).  It should also be acknowledged that Greenspan worked with US counsel on Black’s representation – in fact, he made the retainer of such a lawyer a condition of his representation (Greenspan on Black)

In each of these cases the lawyer’s (or lawyers’) area of expertise (insolvency and commercial litigation/Canadian criminal law and procedure) deviates from the issues raised by the representation (sex and employment/US criminal law and procedure).  The quality of their representation has been challenged.  So why were the lawyers acting? Why didn’t they refuse the brief?

My guess is that it was not because of ignorance of their legal and ethical duties.  Rather, it was because they did not see any issues with the representation.

One explanation for that (mis)perception may be that the feeling of not being competent is not abnormal for a lawyer.  Most lawyers in the early stages of their career – and some lawyers (and academics!) at later stages of their careers – will feel like they don’t know enough, or have sufficient skill, to be handling the work they have been given to do.  But they persevere, because the work has been given to them and it’s their job to figure out how to do it as best they can.  They trust the senior lawyer to identify any mistakes, or their own hard work and effort to ensure that such mistakes are avoided.  As a consequence, however, lawyers may become somewhat inured to that feeling of incompetence, and less likely to see it as a basis for ethical decision-making.

Another may be that human beings simply tend to think we are better at things than we are.  In one study 94% of university professors rated themselves as above average teachers (here); in another study 88% of drivers reported themselves as above average (here).   Evidence does suggest competent people have better self-assessment in their area of competence than do incompetent people (the Dunning-Kruger effect, summarized here), which might suggest that lawyers ought to know the boundaries of their competence.  But on the other hand, it may suggest the opposite: that it is at the boundaries of our competence, when we are becoming incompetent, that we become the least able to assess our own abilities.  As David Dunning noted in the article linked above, “Logic itself almost demands this lack of self-insight: For poor performers to recognize their ineptitude would require them to possess the very expertise they lack.” It may be at the point where our expertise runs out that we do not know that it has.

A further contributing factor is the fact that while lawyers clearly do specialize we do not treat ourselves as specialists from a regulatory perspective.  We admit all lawyers to legal practice as generalists and we don’t identify them as specialists absent the satisfaction of certain criteria (and even that only occurs in some jurisdictions). This may create a perception amongst members of the bar that they have general competence, that their competence is not limited to their area of specialization. As a result lawyers may be more willing to practice outside of their specialty than are, say, doctors; one can’t really imagine a dermatologist being willing to practice occasionally as a neurosurgeon, or a neurosurgeon deciding to dabble in skin cancer detection.

If this is the case, then how might a lawyer avoid overreaching into areas where she lacks the necessary competence?  One way is to view oneself as a specialist and to know what that specialty is. The specialty may not be an area of law – lawyers practicing in smaller communities and litigators often deal with a variety of legal questions.  But it may be that all one’s clients are individuals; the cases are small; they don’t involve issues of crime or sex; they all occur within Canada.

And if a case is outside of her area of specialty, then the lawyer ought to presume that she is not competent to deal with it, and also be aware that she is far more likely to mistakenly believe that she is competent than to mistakenly believe that she is not.  That, most significantly, the lawyer may not even know the risks to her client that her lack of knowledge and experience in the area presents, because she doesn’t know enough about the governing law and procedures to know the dangers.  A lawyer who, e.g., never practices in areas touching on criminal law simply will not appreciate that an admission of certain sexual practices may indicate guilt regardless of consent.  This does not mean that the lawyer cannot be involved in such a case, but it does suggest that the lawyer ought not to act as sole and senior counsel on it.  Rather, the lawyer should be involved in a junior or supporting role in the case or, if acting as senior counsel, should ensure that there is supportive expertise provided by someone with the knowledge and competence the lawyer acts.

This post originally appeared on Slaw.

All I Want for Christmas is the Justification for Shell Jackpine

Tue, 12/23/2014 - 9:00am

By: Martin Olszynski

PDF Version: All I Want for Christmas is the Justification for Shell Jackpine

Case Commented On: Adam v Canada (Environment), [2014] FC 1185

On December 9, 2014, the Federal Court rendered its decision in Adam v. Canada (Environment). Chief Allan Adam, on his own behalf and on behalf of the Athabasca Chipewyan First Nation (ACFN), challenged two federal government decisions pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA) in relation to Shell Canada’s proposed Jackpine oil sands mine expansion project. The first was the Governor in Council’s (GiC) determination pursuant to section 52(4) that the project’s anticipated significant adverse environmental effects are “justified in the circumstances.” The second was the Minister’s “Decision Statement” pursuant to section 54, which contains the conditions subject to which the project may proceed. In a decision that reads somewhat tersely but that also covers a lot of ground, primarily Aboriginal consultation and division of powers issues, Justice Tremblay-Lamer dismissed the ACFN’s challenge. This post – the first of what will likely be a series – focuses on the first challenged decision: the GiC’s determination that the project’s significant adverse environmental effects are justified.

As I noted when the Joint Review Panel (JRP) report for Shell Jackpine was first released back in the summer of 2013, this was the first time that a JRP concluded that an oil sands project was likely to result in significant adverse environmental effects:

[9] The Panel finds that the Project would likely have significant adverse environmental effects on wetlands, traditional plant potential areas, wetland-reliant species at risk, migratory birds that are wetland-reliant or species at risk, and biodiversity. There is also a lack of proposed mitigation measures that have been proven to be effective. The Panel also concludes that the Project, in combination with other existing, approved, and planned projects, would likely have significant adverse cumulative environmental effects on wetlands; traditional plant potential areas; old-growth forests; wetland-reliant species at risk and migratory birds; old-growth forest reliant species at risk and migratory birds; caribou; biodiversity; and Aboriginal traditional land use (TLU), rights, and culture.  Further, there is a lack of proposed mitigation measures that have proven to be effective with respect to identified significant adverse cumulative environmental effects.

The effect of all of this was that before the project could proceed, the GiC (i.e. the federal cabinet) had to determine that these effects were “justified in the circumstances” pursuant to section 52. This the GiC did, or at least purported to do. As I noted here, the GiC never actually provided any justification. Rather, and in contrast to the detailed justification provided for the Lower Churchill Hydroelectric project (a project also found likely to result in significant adverse environmental effects), the Shell Jackpine ‘Decision Statement’ simply stated that “[in] accordance with paragraph 52(4)(a) of CEAA 2012 the Governor in Council decided that the significant adverse environmental effects that the Designated Project is likely to cause, are justified in the circumstances.”

The ACFN challenged this aspect of the GiC’s decision from a consultation perspective, arguing that as a consequence the process lacked transparency (at para 28). The federal government responded that “the Minister’s advice to Cabinet and the reasons for Cabinet’s decision are confidential; the ACFN had no right to disclosure” (at para 34). The Federal Court agreed with the government:

[79] …The applicant was not entitled to disclosure of the Minister’s advice to Cabinet: as they acknowledge, the Minister properly asserted privilege (Canada Evidence Act, RSC 1985, c C-5, s 39(2)). Furthermore, the duty to consult is determined by the actions that Canada took during the consultation process, not by what the Governor in Council may have considered.

[80] This Court could draw an adverse inference if the Crown selectively disclosed only those documents that favoured its position (Babcock v Canada (AG), 2002 SCC 57 (CanLII) at para 36, [2002] 3 SCR 3), which cannot be said of the present case. No adverse inference can stem from the Crown’s exercise of privilege.

[81] Nor did the Crown have to justify to the ACFN the Cabinet’s decisions on the Project (Babcock at paras 21–27). The applicant cites no authority in support of their purported right to such justification. The duty to consult obliged the Crown to justify its rejection of the ACFN’s position but not to disclose the explanation that it gave to the Cabinet for recommending approval of the Project (West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (CanLII) at para 148, 333 DLR (4th) 31) (emphasis added).

I haven’t seen the pleadings so it’s hard to know where things went sideways here, but it appears that there was some confusion between the confidential deliberations of Cabinet, which are indeed privileged, and the “justification” (i.e. explanation) required by the Act. The authority for that latter proposition is the Federal Court of Appeal’s very recent decision in Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189 (CanLII), another case involving a challenge to a CEAA justification decision (for the previously mentioned Lower Churchill hydroelectric project). As I noted here, the Court of Appeal held that a CEAA justification is reviewable in order to ensure that the government complied with the Act:

[40] …the Court will only intervene with the [Governor in Council’s] and Responsible Ministers’ decisions…if it finds that: … 2) the GIC or Responsible Ministers’ decisions were taken without regard for the purpose of the CEAA; or 3) the GIC or Responsible Ministers’ decisions had no reasonable basis in fact; which is tantamount to an absence of good faith.

Without any reasons or explanation, it is not possible to determine whether the GiC had regard for the CEAA’s purposes, the duties imposed on it pursuant to section 4 (to “exercise [it’s] powers in a manner that protects the environment and human health and applies the precautionary principle”), or that the decision had a reasonable basis in fact.

Even the federal government seemed to appreciate the implications of the Innu of Ekuanitshit decision for this part of CEAA, as evidenced from the circumstances surrounding the release of its response – soon thereafter – to another project recently deemed likely to result in significant adverse environmental effects, the Site C dam. Although the Decision Statement for that project is as sparse with respect to justification as was the one for Shell Jackpine, the same day that it was released the Minister of Environment also released a “statement outlining the [GiC’s] determination” that Site C’s environmental effects are justified in the circumstances:

The Site C project, which has been proposed by BC Hydro and Power Authority, underwent a thorough independent federal-provincial review by an independent panel. This process included extensive, meaningful and respectful consultations with the public and Aboriginal groups. The environmental assessment process provided the scientific and technical expertise and the effective engagement of the public and Aboriginal groups to enable an informed decision by both governments.

The proposed Site C project is an important one for British Columbia and for Canada as it will support jobs and economic growth while providing clean, renewable energy over the next 100 years. The Site C Clean Energy Project will translate into about 10,000 direct person-years of employment from now until 2024 and when indirect and induced jobs are added in, that figure climbs to 29,000 person-years of employment.

This decision will benefit future generations. Over the life of the project, Site C is expected to help mitigate the growth in greenhouse gas emissions in Canada by preventing the discharge of between 34 to 76 megatonnes of CO2 equivalent.

In the Decision Statement that I released today, there are over 80 legally binding conditions that must be fulfilled by the proponent, BC Hydro, throughout the life of the project in compliance with the Canadian Environmental Assessment Act, 2012. Failure to meet these conditions is a violation of federal law (emphasis added).

Several questions went through my mind when I first read this statement back in October. The first was whether similar explanations accompanied the Decision Statements for Shell Jackpine or Enbridge’s Northern Gateway. I checked and couldn’t find any. My second question was to consider whether such a statement, “outlining the GiC’s determination,” was sufficient for the purposes of verifying compliance with CEAA’s purposes and duties and for enabling the primary form of accountability intended here, which is to say political.

Obviously, the Site C “justification” is light on details. It doesn’t speak to the majority of concerns raised by those opposed to it, e.g., that it appears unnecessary from an energy perspective, that there are other less environmentally harmful alternatives potentially available, such as geothermal, and that it will have a significant impact on Aboriginal and Treaty rights in the area. But there is one thing that Site C undeniably has going for it from a CEAA perspective, something that the only other project to come with a real justification (Lower Churchill) also has going for it and which makes both projects entirely different from Shell Jackpine: the promise of positive environmental effects in the form of reduced greenhouse gas emissions. It is at least arguable that Site C’s approval is consistent with taking “actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy” (CEAA, at para 4(1)(h)).

Shell Jackpine? Not so much. In my view, CEAA requires, and Canadians – especially the ACFN – deserve to know why or how this project is “justified in the circumstances,” circumstances which include the destruction of “a large part of the ACFN’s traditional lands” with harm that “is potentially irreversible or has not been mitigated through means of proven efficacy” (Adam, at para 71).

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Two Alberta Perpetuities Stories

Fri, 12/19/2014 - 9:00am

By: Nigel Bankes

PDF Version: Two Alberta Perpetuities Stories

Matters Commented On: Bill 8, Justice Statutes Amendment Act and Gottlob Schmidt’s donation to the province of Antelope Provincial Park

This post covers two matters. The first is the amendment to the Perpetuities Act, RSA 2000, c. P – 5 enacted as part of Bill 8, the omnibus Justice Statutes Amendment Act which received third reading on December 9th and Royal Assent on December 17th. The second relates to a story carried in the Calgary Herald about Gottlob Schmidt’s generous donation to the province of a block of land for parkland purposes.

Section 9 of Bill 8, the Justice Statutes Amendment Act provides that

(2) The following is added after section 22 [of the Perpetuities Act]:

Rule against perpetuities not applicable to qualifying environmental trusts

22.1(1) In this section, “qualifying environmental trust” means a qualifying environmental trust as defined in section 1(2)(g.011) of the Alberta Corporate Tax Act.

(2) The rule against perpetuities does not apply to a qualifying environmental trust created after December 31, 2013.

The definition of a qualifying environmental trust (QET) is complex since it involves reference not only to the Alberta Corporate Tax Act, RSA 2000, c.A-15 but also to the QET provisions of the federal Income Tax Act, RSC 1985 (5th supp.), c 1. The basic idea of a QET is that it is a trust that is established to meet reclamation obligations principally in the natural resources sector. This amendment to Alberta’s Perpetuities Act became necessary (or at least desirable) as a result of the National Energy Board’s consideration of the need to make provision for the reclamation obligations of operators of federally regulated pipelines.

In its report, Reasons for Decision, Set Aside and Collection Mechanisms: Pipeline Abandonment –Financial Issues, issued in May 2014, the NEB made decisions about the types of financial mechanisms that it would accept to ensure that regulated companies would have adequate funds in place to pay for pipeline abandonment out into the future. While the Board generally supported the use of QETs as a tax efficient mechanism for achieving this goal, it also noted that any such trusts would need to take account of the applicable perpetuities rules of the relevant jurisdiction. This might, for example, involve commitments to re-settle QETs before the expiry of any perpetuity period in a “wait-and-see” jurisdiction, or it might involve some jurisdiction shopping to establish the trust in a jurisdiction like Manitoba that has abolished the rule (although the Board noted (at 32) that a settlor’s choice of law would not always be determinative). However, the Board also noted (at 33) that “Enbridge argued that there is the potential that Alberta will abolish the rule against perpetuities. The Board expects that Enbridge is working to achieve this goal in view of its submissions.”

In sum, the current amendment is a response to the concerns identified. Hansard for December 1, 2014 (at 217) records that the amendment was sought by the Canadian Energy Pipeline Association on behalf of its members. The amendment is designed to provide greater certainty for those seeking to establish QETs in Alberta to provide for pipeline abandonments costs. It will make Alberta a more attractive jurisdiction for this purpose since the inapplicability of the rule means that the settlor will be able to avoid the complexity associated with the need to re-settle funds before the end of the perpetuity period.

The second story which caught my attention was carried in the Calgary Herald on December 6th, referring to a generous donation of land by Gottlob Schmidt of native grasslands for the creation of Antelope Hill Provincial Park. What caught my attention was the statement in the story that “The donation from Schmidt comes with the requirement that the province ‘preserve the land in its natural state for future generations to enjoy.’” Now I don’t know how Schmidt actually structured this gift but this language does ring some alarm bells because of changes made to the perpetuity rules in Alberta in 1972 (effective 1973).

As everybody knows, perpetuities reform in Alberta introduced the idea of “wait-and-see” to Alberta’s perpetuities rules as a result of which most contingent gifts will be saved: Perpetuities Act, ss. 2- 4. But the perpetuity reformers of that era (see Institute of Law Research and Reform, Report No. 6, Report on the Rule Against Perpetuities, August 1971) also changed the law on the age old distinction between determinable estates and estates subject to a condition subsequent.

In the pre-Act days it would have been easy to advise Mr. Schmidt as to how to structure this transaction to make it stick for the benefit of future generations. The advice would have been to structure the gift as the grant of a fee simple determinable, i.e. “for so long as the land is maintained in its natural state”. That would have left Mr. Schmidt and his heirs with a possibility of reverter and in the pre-Act days that possibility of reverter was not subject to the common law rule: Village of Caroline v Roper (1987), 82 AR 72 (QB). But the Act changed all of that.

Section 19 made three changes to the common law rules on the distinction between determinable estates and estates subject to a condition subsequent. First, s.19 says that the distinction between the two is abolished for perpetuities purposes. Hence, both the possibility of reverter and the right of re-entry are subject to the rule. Second, the result of making both interests subject to the rule is that if the contingent event has not come about during the perpetuity period, the right of re-entry or the possibility of reverter is henceforward void, i.e. in this example, the province’s title becomes an absolute fee simple shorn of the private law obligation to maintain the property in its natural state. The result of these two changes is that Mr. Schmidt can no longer structure the deal to benefit future generations but can only structure it to achieve this result as a matter of private law for the perpetuity period. And so third, what is the perpetuity period for this purpose? Well the normal rule under the Act is the (statutory) lives in being plus 21 years for non-commercial transactions (see s. 5) or 80 years for commercial transactions (s.18) – but in the case of s.19 the perpetuity reformers recommended a very short period of 40 years.

The Institute’s Report argued as follows (at 56):

We assume that the distinction between a determinable fee and a right of entry applies in Alberta though we know of no case on the subject; and indeed there may be doubt whether either type of interest is registerable under the Land Titles Act. In any case we think it advisable to deal with them. Morris and Leach (209-218) think that both types of interest should be treated in the same way. The next question is whether they should both be within the Rule or outside it. Both England (s. 12) and Ontario (s. 15) have brought determinable fees within the Rule. On balance we agree with this policy. The determinable fee, like a right of re-entry creates a cloud on the title and it may remain indefinitely in favour of some one who can be identified only with difficulty.

The Institute gave a similar reason (at 57 – 58) for preferring the shorter period of 40 years as the relevant perpetuity period, namely the difficulty of tracing the person entitled to benefit from the condition or limitation.

The short answer to this may of course be that it is not up to the grantee (the Province in our example) to trace anybody. It is up to an interested grantor (or his or her successors) to take the initiative if the “possibility” comes about. If they are not interested then that is likely the end of the story. In any event, 40 years does seem a very short period when considered in the environmental context of protecting land and biodiversity values for future generations.

We have seen some piecemeal reform of the Perpetuities Act in the last couple of years to respond to concerns of mineral owners (see the new s.19(5)) and my post on the background to this amendment) and now of pipeline companies (and the landowners who will benefit from perpetual QETs). If we are to engage in a more comprehensive review of the perpetuities legislation then it might be appropriate to revisit the policy behind this particular change that was made in 1972 and ask whether we really want to prevent somebody from trying to ensure that land donated for public purposes will continue to be used for those purposes for more than just a 40 period.

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The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

Thu, 12/18/2014 - 9:00am

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

Case Commented On: Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC)

A few weeks ago we wrote a post on Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC), predicting what the Supreme Court might decide on the issue of whether the prohibition against assisted suicide amounts to adverse effects discrimination against people with disabilities, contrary to section 15(1) of the Charter. We mentioned that Carter is one of two adverse effects cases currently before the Supreme Court. This post will consider the second case, Taypotat v Taypotat.

Taypotat concerns a community election code adopted by the Kahkewistahaw First Nation in Saskatchewan to govern elections for the positions of Chief and Band Councillor. The adoption of the code was controversial and took a number of ratification votes, stemming in part from the fact that it restricted eligibility for these elected positions to persons who had at least a Grade 12 education or the equivalent. Although he had previously served as Chief for a total of 27 years, the Kahkewistahaw election code excluded 74 year old Louis Taypotat from standing for election because he did not have a Grade 12 education. He had attended residential school until the age of 14 and had been assessed at a Grade 10 level. His nephew, Sheldon Taypotat, was the only eligible candidate for Chief, and he won the election by acclamation. In an application for judicial review, Louis Taypotat challenged the eligibility provision and the election results under section 15(1) of the Charter.

At the Federal Court hearing, Taypotat argued that the election code’s education requirement discriminated on the basis of educational attainment, a ground he argued to be analogous to race and age (2012 FC 1036 at para 54). The Federal Court rejected this argument, finding that no evidence had been led to support the inclusion of educational level as an analogous ground, and that “educational level is not beyond an individual’s control” (at para 58). Taypotat also argued that the education requirement adversely impacted older band members and residential school survivors. The Federal Court found that requirements based on education relate to “merit and capacities” and were therefore “unlikely to be indicators of discrimination, since they deal with personal attributes rather than characteristics based on association with a group” (at para 49). The Federal Court saw no evidence of adverse effects discrimination on the basis of age or race, and dismissed the claim (at para 60).

On appeal, Taypotat’s arguments focused on the adverse effects claim based on the grounds of age and Aboriginality-residence. The Federal Court of Appeal noted that in the Supreme Court’s most recent equality rights decision at the time, Quebec v A, the Court had reaffirmed the application of section 15(1) to laws with discriminatory effects (2013 FCA 192 at para 47, citing Quebec v A, 2013 SCC 5, [2013] 1 SCR 61 at para 171). It also relied on Quebec v A for the point that neutral laws can inadvertently perpetuate stereotypes and disadvantage:

Laws may be adopted that unintentionally convey a negative social image of certain members of society. Moreover, laws that are apparently neutral because they do not draw obvious distinctions may also treat individuals like second-class citizens whose aspirations are not equally deserving of consideration. (at para 55, citing Quebec v A at para 198).

Applying these principles and the test for discrimination from R v Kapp, 2008 SCC 41, [2008] 2 SCR 483 and Withler v Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396, the Federal Court of Appeal found that while the education requirement did not directly engage a protected ground under section 15(1), it resulted in adverse effects discrimination based on the enumerated ground of age and the analogous ground of Aboriginality-residence (at para 45).

The first step of the Kapp/Withler test requires analysis of whether the election code created a distinction based on a protected ground. The Court referred to evidence submitted by Taypotat showing a deficit in education levels for on-reserve Aboriginal peoples in Canada, as well as an education gap between older and younger Canadians generally and on First Nations reserves specifically (at para 48, citing John Richards, “Closing the Aboriginal non-Aboriginal Education Gaps,” C.D. Howe Institute Backgrounder 116 at 6). In addition, the Court took judicial notice of “readily available census information” from 2006, which provided supporting evidence of these gaps on the basis of age and Aboriginality-residence (at para 49). Support for this approach was found in Justice LeBel’s judgment in Quebec v A, where he took judicial notice of the proportion of couples living in de facto unions by relying on census data (at para 51, citing Quebec v. A at paras 125 and 249). Based on this evidence, the Federal Court of Appeal concluded that the election code’s education requirement “disenfranchise[d] … a disproportionate number of elders and on-reserve residents” (at para 52). As a result, the election code created a distinction “which has the effect of targeting segments of the membership of the First Nation on the basis of age and of Aboriginality-residence” (at para 56). The requirement of a distinction based on protected grounds was thus made out.

The challenged provision of the election code also satisfied step two of the Kapp/Withler test, which considers whether the distinction is discriminatory. The Court found that denial of an opportunity for election to Band Council, a fundamental social and political institution, “substantially affect[ed] the human dignity and self-worth” of persons such as Louis Taypotat, amounting to prejudice (at para 56). The education requirement also perpetuated stereotyping because it did not “correspond to the actual abilities of the disenfranchised to be elected and to occupy public office” (at para 58). The Court found that “[e]lders who may have a wealth of traditional knowledge, wisdom and practical experience, are excluded from public office simply because they have no “formal” (i.e. Euro-Canadian) education credentials. Such a practice is founded on a stereotypical view of elders” (at para 60).

Under section 1 of the Charter, the Court held that although the education requirement sought to “address the lack of education achievement among aboriginal peoples by encouraging them to complete their secondary education” (at para 60), and thus had a pressing and substantial objective, there was no rational connection between that objective and “the disenfranchisement of a large part of the community from elected public office” (at para 62). The relevant provision of the election code was declared unconstitutional and invalidated, and new elections were ordered without the education requirement (at para 66). Louis Taypotat was re-elected Chief of the Kahkewistahaw First Nation following this judgment (Taypotat, Factum of the Respondent (Supreme Court of Canada), para 28).

The Federal Court of Appeal decision confirms the point that not all members of a particular group need to be adversely affected in order for adverse effects discrimination to be made out (at paras 52-53). The fact that the claimant — an elder who was a residential school survivor residing on a First Nations reserve — was a member of a group widely acknowledged to be especially vulnerable likely facilitated this finding.

The Court of Appeal also appeared unfazed by the holding in Withler that adverse effects discrimination will be more difficult for claimants to prove (Withler at para 64). However, this was one of the more contentious issues in the hearing of the Taypotat appeal before the Supreme Court. The Appellants (Chief Sheldon Taypotat and Council representatives of the Kahkewistahaw First Nation) argued that the evidentiary sources relied upon by the Court of Appeal were too generalized, and did not speak to the particular situation of their community (Taypotat, Factum of the Appellants (Supreme Court of Canada), paras 86, 88). Respondent’s counsel was asked several questions about the evidentiary basis for his client’s claim by members of the Supreme Court during the oral hearing, and responded that Louis Taypotat had attested to the specific impact of the education requirement on older residents of the Kahkewistahaw First Nation (Webcast of the Taypotat Hearing (2014-10-09)).

Evidentiary issues have undermined several adverse effects cases at the Supreme Court level: see e.g. Symes v Canada, [1993] 4 SCR 695; Thibaudeau v Canada, [1995] 2 SCR 627; Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391. Nevertheless, the Federal Court of Appeal’s acceptance of statistical evidence in Taypotat does align with the approach in Withler, which discussed the desirability of bringing forward evidence of historical or sociological disadvantage (Withler at para 64).

Another argument made by the Appellants at the Supreme Court is that the education requirement goes to the merits of election candidates and is a personal attribute they can attain if they choose (Taypotat, Factum of the Appellants at para 69). This point was emphasized in the Appellants’ presentation of oral argument, which raised questions from members of the Court about whether choice is still a relevant consideration under section 15(1). This issue arises from the Court’s ruling in Quebec v A, where a majority indicated that the state’s support of freedom of choice (of marital status in that case) was not pertinent until the section 1 analysis (Quebec v A at paras 334-338). Questions were also asked by members of the Supreme Court about whether Louis Taypotat’s lack of education could actually be attributed to choice. We suggest that choice should not be a relevant consideration in section 15(1) claims, and that it is refuted on the facts of a case involving residential school survivors such as Taypotat in any event.

Several members of the Supreme Court also questioned whether the education requirement reflected “arbitrary disadvantage” based on age. We would argue that, similar to choice, arbitrariness is a consideration relevant under section 1 of the Charter, not under section 15(1). Incorporating such questions under section 15(1) presents particular problems for adverse effects discrimination claims because arbitrariness focuses on the purpose rather than effects of the law. Even if a requirement such as educational level is intended to address the merits of election candidates, and is not arbitrary in that sense, it may still disproportionately impact older persons resident on First Nations reserves in an adverse way. The rationality and justifiability of that impact should be addressed under section 1 of the Charter, not section 15(1).

Nor is it appropriate to consider the merit-based purpose of the education requirement under section 15(2) of the Charter, as the Appellants urged the Court to do (Taypotat, Factum of the Appellants at para 102ff). Section 15(2) allows governments to “save” ameliorative laws and programs that would otherwise be discriminatory under section 15(1) (see Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 SCR 670, 2011 SCC 37 at para 41). Section 15(2) is not relevant in adverse effects cases because by definition they involve neutral rules rather than benefit programs targeted at disadvantaged groups, which are the proper subject of section 15(2). In any event, section 15(2) should not preclude claims where, even though adopted for an ameliorative purpose, a law has discriminatory adverse effects on a group protected under section 15(1) (see Jonnette Watson Hamilton and Jennifer Koshan, “The Supreme Court of Canada, “Ameliorative Programs, and Disability: Not Getting It” (2013) 25 CJWL 56, available here).

We predicted that the Supreme Court may avoid the section 15(1) argument in Carter and decide the case under section 7, but the option of deciding the claim on another Charter right is not available in Taypotat. The case thus presents an important opportunity for the Court to clarify the law on adverse effects discrimination, and we eagerly await its decision.

This post is based on a paper that is forthcoming in the Review of Constitutional Studies, available on SSRN.

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Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R. v. S.A. on the Right Track?

Tue, 12/16/2014 - 11:55am

By: Ola Malik and Sarah E. Hamill

PDF Version: Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R. v. S.A. on the Right Track?

Case Commented On: R. v. S.A., 2014 ABCA 191, leave denied December 11, 2014 (SCC)

The trilogy of decisions in R. v. S.A. discusses the limits that may be placed on the public’s right to access transit services. Initially, S.A.’s Charter arguments succeeded at trial (2011 ABPC 269 (SA (ABPC)), but she lost the subsequent appeal at the Court of Queen’s Bench (2012 ABQB 311 (SA (ABQB)) and, after having been granted leave from that decision to the Court of Appeal (2012 ABCA 323 (SA (leave application)), she ultimately lost at the Court of Appeal (2014 ABCA 191 (SA (ABCA)). On December 11, 2014, the Supreme Court of Canada denied leave to appeal. This decision has been the subject of previous posts on ABlawg here, here, and here.

In R. v. S.A., a thirteen year old girl was issued a Notice Not to Trespass under Alberta’s Trespass to Premises Act, RSA 2000, c T-7 (TPA) after she assaulted another youth at a train station. She was subsequently convicted of that offence. Edmonton Transit Service (ETS) issued the Notice, and banned S.A. from being on any ETS property for a period of 6 months. Although not obvious from the text of the Notice, it could be modified on application by the affected party to allow access to public transit for specified purposes and times, such as to attend school. With the help of a youth worker, S.A. sought, and was granted those modifications for certain hours during the week. S.A. was not ticketed on occasions where she used transit to travel to school, appointments, or for other “legitimate” purposes. She admitted to using ETS property on occasions which were subject to the ban. Several months following the issuance of the Notice, S.A. was found on ETS property and was charged with trespass under the TPA.

S.A. brought a Charter challenge asserting that the Notice unjustifiably infringed upon her section 7 Charter rights by:

  • Preventing her from accessing places to which the public was generally permitted or invited to be;
  • Impairing her ability to make meaningful choices going to her personal autonomy, contrary to her section 7 Charter rights; and
  • Violating her liberty in a manner that was contrary to the principles of justice, because the Notice was overbroad and did not allow for a proper review process.

The S.A. case raises important public policy questions for any municipality and, in what follows, we examine four of the key issues. The first issue is whether or not trespass legislation should apply to public property. Should a municipality have the power to exclude someone from accessing public transit property like a bus or subway station? The second issue is related to the first and is whether or not a transit ban affects personal autonomy in cases where a banned individual cannot access or afford other methods of transport. The third issue is how much deference courts should show to a municipality’s process with respect to such bans. The fourth issue is how to balance the rights of transit passengers to a safe transit environment with the rights of banned users to access essential public services. With respect to the fourth issue, we discuss Justice Bielby’s dissent at the Court of Appeal because we believe she provides useful, practical suggestions on how a municipality might craft a constitutional ban.

Is it appropriate to apply Trespass to Premises legislation to public property?

At trial, S.A. argued that the Notice engaged her section 7 rights because it banned her from accessing public property to which the public otherwise had a right of access. During the Occupy protests of 2008, one of the issues before various courts was the constitutionality of bans issued against protesters pursuant to trespass to premises legislation. That question was never satisfactorily settled until the S.A. case (for decisions in which trespass to premises legislation has been used, see Weisfeld v R, [1995] 1 FC 68; R v Semple, 2004 ONCJ 55; R v Breeden, 2009 BCCA 463; Vancouver (City) v O’Flynn-Magee, 2011 BCSC 1647; and Batty v Toronto (City), 2011 ONSC 6862). The Crown argued that no such breach of S.A.’s section 7 rights had occurred because the TPA applied to all property, whether owned by a private landowner or by government, to which the public had a general invitation and right to attend.

The trial judge, Judge Dalton, reviewed the common law of trespass and concluded that the concept of trespass only applied in the context of privately-held ownership over lands. She found S.A.’s case to be readily distinguishable given that it was one in which a municipality was seeking to ban a member of the public from accessing public property specifically made available for public use (SA (ABPC) at paras 69-88). Judge Dalton concluded that while the TPA might properly reflect the common law as it pertained to the unlimited right of control exercised by a landowner over his or her private property, applying these same powers in respect of public property “…is not commensurate with modern conceptions of public goods and public property.” (SA (ABPC) at para 90).

In Judge Dalton’s view, limiting the applicability of the TPA to privately owned lands:

…accords better with a modern understanding of public property and a citizen’s right vis-a-vis that property in a liberal democracy. An absolute right to exclude persons from public property is inimical to the very notion of public property. The trespass paradigm proposed by the Crown…is, in my view, an antiquated conception that is neither borne out in the context of emerging social mores nor in the jurisprudence. (SA (ABPC) at para 91)

Consequently, Judge Dalton found that the TPA was unconstitutional as it applied to public property and declared the TPA of no force and effect as against S.A.

While Judge Dalton was ultimately overturned on appeal, her comments are nevertheless instructive and raise important questions of public policy. The TPA only applies to trespassers but the act’s definition of “trespasser” which is set out at section 1(f) as “a person who commits a trespass under this Act” does not really clarify what, exactly, a “trespasser” is. In the case of private property, you’re a trespasser if you don’t have the owner’s permission to be on their property. Defining trespass on public property is more of a challenge because the public has an invitation and implied right to be there. The justifying factor for excluding the public seems to depend on the activity which the alleged trespasser is engaged in. The challenge is to establish a clear dividing line between behaviour which is so inimical to the use of the public property in question that it would justify banning someone as a trespasser, and non-offensive conduct which would not. How would a potential “trespasser” know where that dividing line falls, and whose responsibility is it to draw this line — the legislature’s, the courts’, or the property owner’s?

On appeal, Justice Binder of the Court of Queen’s Bench reversed Judge Dalton’s findings. Although most of his judgment focused on whether S.A.’s section 7 rights had been infringed, he also held that while ETS Property was property on which the public was ordinarily entitled to be, public transit property is unique in the purpose which it serves (R v SA (ABQB) at paras 88-89). He noted that users of public transit find themselves in “confined spaces with limited opportunities to exit in the event that they are exposed to violence” (SA (ABQB) at para 90). He recognized that public carriers have an obligation to keep other transit users safe and found that S.A.’s violent behavior justified a ban. He further recognized that there was no constitutional bar to prevent the TPA from applying to public property. Rather, it was the use of the TPA by public bodies which was potentially unconstitutional (SA (ABQB) at para 85).

Justice Binder’s point is an important one because it reminds us that not all public spaces are created equal and so rights of access will differ. Banning someone from attending a municipal park, for example, is a very different proposition than banning someone from the atrium of City Hall, judge’s chambers, or a Fire Hall (For more on this line of thinking, see the Breeden decisions: 2007 BCPC 79, aff’d 2007 BCSC 1765, aff’d 2009 BCCA 463).

Justice Binder is not the first to point out that the function of a public place is important, as the majority of the Supreme Court of Canada did the same in Committee for the Commonwealth of Canada v Canada (Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139 at 156-158). In that case, a majority concluded that expressive activity carried out on government-owned property on which the public is ordinarily entitled to be would engage Charter protection if the primary function of that space is compatible with free expression and if expressive activity in such a place serves the values underlying the free speech guarantee. In contrast, expressive activity undertaken on government-owned property which has a private use aspect to it or is a place of official business would likely not attract Charter protection because of its disruptive and negative impact on the orderly conduct of business.

The majority of the Alberta Court of Appeal in S.A. (Justices Côté and O’Ferrall) agreed with Justice Binder’s observations that it is the intended purpose or function of public property which matters rather than the mere fact that it is made available to the public. The majority emphasized that, unlike a municipal park which is designed to accommodate public idling and a range of other activities such as “…camping, selling wares, partying or sleeping”, subway stations are “public” spaces with a very specific design and purpose: that of transporting a high volume of people at high speeds ((SA (ABCA) at paras 101, 98; note however that camping is banned in some public parks: Sarah Hamill, “The Charter Right to Rudimentary Shelter in Victoria: Will it Come to Other Canadian Cities?” (25 March 2010), Centre for Constitutional Studies).

In fact, the majority held that the TPA was merely the machinery through which breaches of the Edmonton Transit Bylaw could be enforced or addressed. The power to exclude S.A. from ETS Property did not derive from any powers granted by the TPA, but came from the Transit Bylaw, which banned certain conduct on transit property and arose out of the common law of common carriers (SA (ABCA) at paras 65-81). Common carriers have a longstanding obligation to keep the travelling public safe and this obligation includes the duty to prevent “physical injuries of any kind including injury from the acts of other passengers” (SA (ABCA) at para 76).

Given that the power to exclude the public derived from breaches of the Transit Bylaw or out of the common law of common carriers, the majority held that there was no basis for challenging the constitutionality of the TPA. If a Charter challenge should have been brought at all, the majority thought it should have been directed at the Transit Bylaw rather than the TPA (SA (ABQB) at paras 33-41). Moreover, given that the TPA did not contain special rules for public property, the majority concluded that the legislature must have intended that it apply generally, whether to public or private property. In respect of public property, the majority held that permission, once given for public access, could always be revoked. Consequently, someone who engages in activities which are inconsistent with the purpose for which transit property exists or who otherwise engages in behaviour which threatens the health and safety of other users, could properly be subject of a ban under trespass to premises legislation (SA (ABQB) at para 105).

Does banning someone from using transit property impair their ability to make meaningful choices which go to their personal autonomy?

The next question was whether the Notice engaged S.A.’s liberty rights by precluding her from exercising those life choices which lie at the heart of her individual dignity and personal autonomy. Put differently, what impact does a ban on using transit property have on the lives of people who do not have alternative means of transportation to get to work, medical, family appointments, recreational activities or other day-to-day activities? This is a fascinating public policy question and, as far as we know, has not been dealt with elsewhere.

Having heard from several young people called as witnesses and an outreach worker, Judge Dalton held that access to transit was a critical component for allowing people to exercise those basic choices which lie at the core of section 7. She noted that access to public transit is “the means by which those basic choices can be expressed” and that the “old, the young and the poor … are most affected” by transit bans (SA (ABPC) paras 146 and 148). In her view, the freedom to make the choices at the heart of the section 7 right “is an empty one indeed when one does not have the means to reify those choices”:

…In a city the size of Edmonton, goods and services are scattered about and not all within walking distance of home, particularly in a climate as intemperate as Edmonton’s. People need transportation to go to school, to go to work, to buy groceries, to visit the doctor or hospital, to visit friends and family, to go to the library, to go to the bank, to go to concerts, to go to the swimming pool, to take their children to daycare, to go to the park, to go to church, to attend Alcoholics Anonymous meetings.

 …For many others with limited financial means, public transit is virtually the only way to get about the city. They don’t have the resources to buy or own a vehicle, or even to take taxicabs (SA (ABPC) at paras 146-150).

Irrespective of whether one agrees with Judge Dalton’s conclusions, her observations are worthy of further thought. She highlights that for many people living on the margins of our society, restricted access to public transit would have a dramatic impact on their day-to-day lives. Of course any violation of section 7 must then be balanced against the rights of other transit users to be safe when using transit property under section 1 of the Charter. We can well imagine how even a short term ban might have a disastrous impact on someone who is entirely dependent on public transit. In whose favor should the balance lie?

Justice Binder reversed Judge Dalton’s decision on the basis that not every restriction on someone’s ability to access public property will engage their section 7 rights. Having examined the jurisprudence on section 7, he concluded that the Notice would only engage a person’s 7 liberty interests were it to:

  • Prevent that person from having the same access to property enjoyed by other members of the public, particularly areas where the public is “free to roam”, “hang around” or “idle”, or where people normally conduct business or engage in social or recreational activities, and
  • Affect (beyond inconvenience) a person’s autonomy with regard to important, fundamental, inherently personal life choices (not just lifestyle choices), going to the core of what it means to enjoy individual dignity and independence (SA (ABQB) at para 60).

Justice Binder held that S.A. failed to satisfy the first branch of this test. Following on from his conclusion that transit property was different from other “public” property (which might allow for unhindered public access), it was a small leap for him to conclude that a train platform was not a place “…intended primarily for roaming, loitering, conducting business or engaging in social or recreational activities” (SA (ABQB) at para 61). As for the second branch of the test, Justice Binder held that being unable to use public transit was no more deleterious to her section 7 rights than a driving suspension or living in a place where there was only limited public transit services (SA (ABQB) at para 62).

Justice Binder concluded that S.A. had failed to provide sufficient evidence on how the Notice had impaired her day-to-day activities. He pointed to the fact that S.A. had not been ticketed on those occasions when she had a legitimate explanation for using transit, such as going to school, work, probation appointment or any other appointment (SA (ABQB) at para 65). This seems to have eased his concerns regarding the potentially draconian effects on S.A. were the ban to amount to an outright prohibition.

The majority of the Court of Appeal was particularly critical of the sufficiency of S.A.’s evidence on this point. They reiterated the guidelines for a Charter claimant raising hypotheticals to prove that there is a sufficient causal connection between the restriction and the claimant’s section 7 rights. The majority noted that “the proposed hypothetical….must not be remote or extreme” and that legislation will not be unconstitutional simply because one “can imagine an emergency which would compel violating a restriction given for a previous string of mild offences” (SA (ABCA) at paras 117 – 120). The hypotheticals relied on by the provincial court did not, in the majority’s view, meet these tests. In fact the majority found that, aside from issuing restrictions for “persistent loitering,” there was “no evidence” that transit restrictions were issued for “minor offences” such as “smoking while underaged” (SA (ABCA) at para 124).

Both the opinions of Justice Binder and the majority of the Court of Appeal underscore the point that, when assessing whether a restriction upon someone’s liberty rights violates section 7, what matters is actual evidence of infringement, not merely hypothetical discussions about the impact of such restrictions. While we acknowledge that restrictions affecting someone’s right of access to public transit would likely have a disproportionate impact on already vulnerable and marginalized groups, these should not be determinative if the applicant who is bringing the Charter challenge cannot demonstrate a Charter infringement on an individual level. An applicant who brings a Charter challenge must prove that a law actually infringes the Charter – making an argument about a hypothetical breach without evidence may be important in terms of advancing the public policy debate, but is insufficient to establish a legal case.

The majority of the Court of Appeal also agreed with Justice Binder’s finding that not every restriction on someone’s liberty amounts to a violation of their section 7 rights:

Section 7 does not bar a small restriction on something vital. Exiling a person to live in one municipality when his or her work and family and friends are in other municipalities, might be protected. But that is not the same as requiring him or her not to use a certain travel route, or to drive or to purchase gasoline only on even-numbered days. A small impairment of important human choices does not violate s 7 just because ultimately it is conceivable that a cloud of such small impairments might cumulate into something worse (SA (ABCA) at para 170).

For the majority, the threshold for finding a section 7 breach is high indeed and they sought to keep it there. Their concern was that section 7 could come to be over-relied upon if they made it any easier to prove an infringement:

Is s 7 to be implicated when municipalities temporarily exclude private vehicles from certain neighborhoods, or restrict parking there to local residents? Will cancelling the only bus route into one neighborhood, or cutting out bus service on Sunday mornings or after 11 pm, be upset by a s 7 injunction? Will courts regulate increases in transit fares under s 7? Will cancelling seniors’ bus passes be unconstitutional? Does s 7 guarantee the right of pedestrians and cyclists to use every freeway or bridge? Does s 7 bar curfews imposed by bylaws, bail orders, peace bonds, conditional sentences, or conditional discharges? (SA (ABCA) at para 167).

The majority’s point is that section 7 should not be used to second guess a government’s policy decisions. Yet here the majority seems to be importing a section 1 analysis into section 7. It may well be that the hypothetical examples the majority lists could breach section 7 but that such breaches would be justified under section 1.

How much deference will a municipality’s administrative process be given?

The Edmonton Transit System Notice Not to Trespass Policy (ETS Policy) required that bans be issued to anyone found committing a breach of the Transit Bylaw, particularly if that breach endangered the safety and security of ETS employees or the public. The ETS Policy used the severity, frequency, and nature of the conduct being engaged in to help determine the length of time an individual could be banned for. At trial, the question was whether the ETS Policy was “law” and thus subject to Charter scrutiny and, if so, whether the ETS Policy unlawfully deprived S.A. of her section 7 rights for being overbroad, and therefore contrary to the principles of fundamental justice.

As a matter of evidence, Judge Dalton found that the ETS Policy was not a confidential document, had been made available on request to the public, and was intended to guide the actions of ETS enforcement personnel (SA (ABPC) at para 196). Having also concluded that the ETS is a government entity, Judge Dalton held that as the ETS Policy “…sets out a standard that is meant to be binding, and is sufficiently accessible and precise,” it was “law” for the purpose of Charter application (SA (ABPC) at para 193, citing Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31, [2009] 2 SCR 295 [GVTA]).

Having concluded that the ETS Policy was “law” and therefore subject to Charter review, Judge Dalton held that it was overbroad. She found the policy to be overbroad because bans could be issued against someone who had not yet been convicted of the offence giving rise to its issuance and would not be automatically revoked even where the affected the person was later acquitted; bans were not limited in geographical scope and therefore captured all transit property including transit stops and buses; the issuance of a ban was not restricted in its application to serious public safety offences but could be served on a person for activities not giving rise to safety and security issues such as nuisance type activities (loitering, drug and alcohol use or other unacceptable behavior), under-aged smoking, fare evasion, etc; there were insufficient procedural safeguards for engaging in a review or appeal of a ban; and no information was provided to the affected person with respect to the procedures for initiating an appeal. In addition to this overbreadth, individuals were not provided with a specific contact person to speak to within ETS and the procedure for having the ban modified was time-consuming, shrouded in secrecy, cumbersome, and difficult to navigate (SA (ABPC) at paras 205-240).

Justice Binder did not address the question of whether the ETS Policy was “law” because he did not find there the issuance of the Notice or ETS Policy wrongfully infringed upon S.A.’s Charter rights. He concluded that the guidelines set out in the ETS Policy were more administrative than judicial and that no more than minimal procedural fairness was required since the ban was temporary in nature and allowed for an administrative appeal (SA (ABQB) at para 75). Justice Binder pointed out that S.A. had availed herself of the appeal process and had successfully obtained some modifications to the ban restrictions. In his view, S.A. had not sufficiently established how she had been prejudiced by the ban – there was no evidence to show that S.A. had been ticketed for trespassing when attending school, work, or other appointments, and she had apparently not been ticketed when she provided ETS enforcement personnel with a “legitimate” explanation for being on ETS Property. While Justice Binder was generally satisfied with the adequacy of the safeguards found in the ETS Policy, he did point out that the ETS Policy fell below the minimum requirements of procedural fairness by failing to provide a contact number to seek a modification of the ban. Without it, an affected party would not know who to contact (SA (ABQB) at para 78).

With respect to the level of procedural fairness required of the ETS Policy, Justice Binder set a very low bar and explicitly stated that the municipality would be granted a great deal of discretion in its selection of the administrative process to follow. He held that individuals under a temporary ban “have little or no legitimate expectation as to any particular element of procedural fairness” because the decision “is on the lower end of the spectrum of importance to the individual” (SA (ABQB) at para 75).

The majority of the Court of Appeal disagreed with Judge Dalton and held that the ETS Policy was not “law” and that the issue was, in any event, completely irrelevant to a section 7 analysis. For the majority, the issue of determining the ETS Policy as “law” was only to be dealt with under section 1 (which refers to “reasonable limits prescribed by law”), but not under section 7. Further, the majority differed on the evidence heard before Judge Dalton and held that as the ETS Policy was understood to be discretionary, served as a guideline only, was non-binding upon ETS enforcement personnel, and as it had been heavily modified over the years, it should not be considered to be “law” to which the Charter applied. As the majority stated, “[t]he courts cannot review internal policy documents for Charter compliance, and the issue is not “the quality of the guidebooks” (SA (ABCA) at para 250).

With respect to the argument of overbreadth, the majority concluded that the ETS Policy, like most administrative policies meant to apply universally, has to have some measure of in-built flexibility. The mere granting of administrative discretion or flexibility to administrative decision makers (or in this case, ETS enforcement personnel) which might produce some inconsistency in the application of standards does not in itself render the policy vague or overbroad. The majority put it this way (at paras 212-215):

It is often hard to justify constitutionally any government policy, or legislation, which is completely rigid, and treats identically a host of individuals and types of activities or organizations. That can violate a number of rules of administrative and constitutional law. Conversely, almost inevitably government activity will occasionally interfere unduly and unnecessarily with individuals, and even cause them actual harm…

But putting into the legislation or policy some flexibility, or leaving a lot of leeway and judgment for the officials applying the legislation or policy, equally opens up a new range of attacks. Counsel call them vagueness, uncertainty, inaccessibility, secrecy, arbitrariness, discrimination, bias, and lack of procedural fairness. Again, counsel can multiply hypothetical examples.

None of that proves that constitutional limits are a bad thing, or are to be doled out only with stingy hands.

However, it does show that neither of the above two extremes, neither type of attack, should be broad enough that the two attacks come together (or even overlap), and so produce a Catch-22. Legislators, governments and municipalities must have enough room to navigate between that rock and that whirlpool.

In this respect, the judgments of Justice Binder and the majority of the Court of Appeal are of tremendous help to municipalities who delegate much of their regulatory function to administrative processes. It is, of course, long-settled law that municipalities must be granted a degree of deference in their decision-making process (see e.g. Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at paras 19-35; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 at paras 6-8;114957 Canada Ltee (Spray-Tech, Societe d’arrosage) v Hudson (Ville), 2001 SCC 40, at paras 3 and 23). In practical terms, however, it is usually a municipality’s application of administrative guidelines and policies which ultimately affect an individual’s ability to use or have access to municipal resources. When an aggrieved party challenges a municipal bylaw it is usually on the basis that they were denied some right subject to a discretionary administrative decision. Consequently, the critical question becomes whether the administrative decision maker complied with its obligations regarding the affected party’s natural justice and procedural fairness rights.

What does this mean for an individual seeking to challenge the application of administrative rules? If the administrative guideline or process is not “law”, only its use can be challenged under the Charter and the majority seemed to leave a wide degree of discretion for municipalities here. Has the majority left municipalities “off the hook” as far as the application of their administrative processes as long as the bylaw being challenged is found to be Charter compliant? Doesn’t this complicate the remedy which an affected individual has to pursue?

However, it must also be recognized that municipalities face the practical challenge of making thousands of administrative decisions on a daily basis. To expect municipalities to act in every case as if it was acting in the capacity of a judicial decision maker would set a standard which no municipality could ever hope to achieve.

How can the rights of transit passengers to be free from harassment or intimidation be balanced with rights to access essential services?

Justice Bielby wrote the dissenting judgment for the Alberta Court of Appeal and it is worth discussing in some detail as it provides a useful and practical path forward for municipalities who might be somewhat perplexed on how to proceed with their own banning procedures.

Justice Bielby noted that S.A. was not about:

…preferring the rights of an offender to use public transit over those of other users. Rather, the task is how to address the balance which must be achieved between these two considerations; acknowledging that a rider who has assaulted another person nonetheless retains some rights does not drive the conclusion that no other rider has any rights (SA (ABCA) at para 309).

She agreed with Judge Dalton that the Notice engaged S.A.’s liberty interests because it interfered with S.A.’s “fundamental personal autonomy” (SA (ABCA) at para 313; see the discussion of S.A.’s liberty interests at paras 307-362). In particular, Justice Bielby noted that for S.A. and others like her “the mode of transportation … is fundamentally connected with the exercise of her general right to freedom of movement” (SA (ABCA) at para 326). However, Justice Bielby agreed with the decisions of both Justice Binder and the majority judgment of the Court of Appeal that the TPA should apply to publicly owned property (SA (ABCA) at paras 343-344). With respect to the ETS Policy, Justice Bielby disagreed with the majority of the Court of Appeal and held that while application of the ETS Policy had some discretion, it was generally intended to be binding on ETS employees and so was subject to Charter scrutiny (SA (ABCA) at para 358). Justice Bielby further concluded that the manner in which the ETS Policy was being applied by ETS personnel was not in accordance with the principles of fundamental justice because the Notice did not provide information about how to seek a modification; as worded, the Notice applied to all Edmonton public property, not just ETS Property; the ETS Policy allowed Notices to be issued for any type of criminal activity, however minor; and the appeal process for challenging the Notice was informal and not clearly explained (SA (ABCA) at paras 365-387).

However, Justice Bielby recognized that the issues which she identified with the Notice would be relatively straightforward to fix. With respect to the overbreadth of the Notice’s geographical scope, Justice Bielby recommended that the wording of the Notice should specify that it applied only to “LRT Stations and Trains, all ETS Buses, shelters and terminals” (SA (ABCA) at para 383). Justice Bielby commented that although the City’s Notices currently reproduce the information about ways to modify the ban, they do so “in very small type, so small as to be unreadable to some and easily missed by all” (SA (ABCA) at para 384). She recommended that the information about modification be made much bigger and more noticeable by being placed within a box (SA (ABCA) at para 385). Such recommendations are simple for other municipalities to follow: written trespass notices must clearly give information about how they can be modified or appealed, and they must be clear about their geographic scope.

With respect to the Notice’s appeal process, Justice Bielby found that when S.A. was issued the Notice, she could not appeal it herself but needed an adult to do it on her behalf (SA (ABCA) at para 295). The process also did not allow for bans to be overturned, only modified. Not surprisingly Justice Bielby recommended that “any individual, even youth who had no adult representation” should be allowed to apply for their ban to be modified and that the adjudicator of such applications should have “the power to set a ban aside in its entirety” (SA (ABCA) at para 387).

Justice Bielby also suggested that Notices should not be issued for minor infractions but ought to be limited to “conduct which occurs on transit property or which otherwise affects the safety and security of others who ride or work for ETS, whether or not that conduct also constitutes a criminal or provincial offence” (SA (ABCA) at para 386). Her comments in this respect were prompted by the fact that ETS had issued bans to a large number of people: “333 persons were banned from public transit in 2008; fewer than half of them were banned for reasons involving the commission of a criminal offence and fewer than a quarter for the commission of an offence involving violence” (SA (leave application) at para 14).

The recommendations included within Justice Bielby’s dissent are broadly in keeping with similar jurisprudence in other jurisdictions. In Zhang v Vancouver, 2010 BCCA 450, for example, the British Columbia Court of Appeal found Vancouver’s policy about free-standing structures on city streets to be unconstitutional because it did not set out procedures for individuals to apply for an exception (at paras 48, 67). The British Columbia Court of Appeal thus balanced the need for free movement on city streets with the need to protect free expression.

The section 7 rights at issues in S.A. are equally if not more important than the section 2(b) rights at issue in Zhang, and will likely be the source of future litigation in Edmonton or elsewhere. Implicit in Justice Bielby’s dissent is the idea that Notices are being overused and if they are to be issued at all, their use should be tempered and well-considered. In order to avoid unnecessary challenges, municipalities would do well to well to follow Justice Bielby’s practical advice.


The fundamental issues regarding the public’s access to municipal services and government owned property raised by S.A.’s case are here to stay. Each of the court decisions in S.A. raises important questions of law and public policy and, irrespective of which view you ultimately take, makes for fascinating reading. And perhaps that is where the true value of a case such as this truly lies – in its capacity to make judges, lawyers, and the public think about issues in a way that challenges our own perceptions of what we would like our society to look like.

This article was originally published in the Digest of Municipal and Planning Law, (2014) 6 DMPL (2d) December 2014, Issue 24, and is being reproduced here (with some changes) with kind permission.

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ABlawg: The Year in Review

Mon, 12/15/2014 - 9:00am

PDF Version: ABlawg: The Year in Review

It is the time of year for making lists, and at ABlawg we have decided to put together a compilation of our highlights from 2014. It is also the season for the Canadian Law Blog Awards (Clawbies), and we have included a list of some of our favourite blogs as well.

A Series of Series

In 2014 ABlawg ran several series of posts on important judicial decisions and legislative developments in Alberta and Canada more broadly. These series provided an opportunity for the authors to discuss the nuances and impacts of these developments and to share that dialogue with ABlawg readers. Our series covered the following:

  • July / August 2014: Posts by Nigel Bankes, Jennifer Hocking, Jennifer Koshan, Kirk Lambrecht, Q.C., Sharon Mascher, Martin Olszynski, and Jonnette Watson Hamilton on Tsilhqot’in Nation v British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 covered issues including the scope of Aboriginal title, treaty rights, and the duty to consult, and the demise of the interjurisdictional immunity doctrine and the “lands reserved” head of section 91(24) of the Constitution Act 1867. Faculty, students, research associates and guests discussed this commentary and the underlying decisions in a roundtable discussion in July.

  • September 2014: A series of posts by Nigel Bankes, Shaun Fluker and Martin Olszynski on Syncrude Canada Ltd. v Attorney General of Canada, 2014 FC 776 commented on the first Canadian case challenging the constitutional validity of federal greenhouse gas regulations, reviewing administrative law, constitutional and climate change issues.
  • October / November 2014: Posts by Shaun Fluker, Jennifer Koshan and Martin Olszynski on Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 and Ernst v EnCana Corporation, 2014 ABQB 672 reviewed developments in Jessica Ernst’s litigation against EnCana, the ERCB, and Alberta Environment for harms flowing from hydraulic fracturing and breach of the Charter. The posts led to media interest (e.g. here).

Broadening our Scope

ABlawg was very pleased to be one of the blogs featured in the launch of Can LII Connects in April 2014, and all ABlawg posts on Canadian judicial decisions are now cross-posted to this site, expanding our audience.

ABlawg also welcomed some new bloggers this year. John-Paul Boyd, Executive Director of the U of C affiliated Canadian Research Institute for Law and the Family, launched an excellent new blog on Access to Justice in Canada, and we have been cross-posting some of his commentary on ABlawg. Sarah Burton joined the Alberta Civil Liberties Research Centre as a research associate, and has also been posting on access to justice issues on ABlawg. Over the summer, students from Student Legal Assistance contributed blogs on criminal and family issues to ABlawg (see here, here and here).

Measuring Impact

A number of ABlawg posts were cited, excerpted and reprinted in judicial decisions, professional publications, legal arguments, law review articles, and the blogosphere, a sampling of which follows:

  • On Can LII Connects in May 2014, Nate Russell posted a comment on blog posts that had been cited in judicial decisions, and all were written by ABlawg bloggers: John-Paul Boyd, Jonnette Watson Hamilton and Alice Woolley
  • The Council of the Innu of Ekuanitshit cited Martin Olszynski’s post Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls in its application for leave to appeal to the Supreme Court of Canada

Our Favourite Canadian Law Blogs

  • Can LII Connects, for creating a comprehensive site for commentary on Canadian judicial decisions
  • Susan on the Soapbox, for Susan’s incisive and provocative commentary on the Alberta political scene
  • We also love Slaw (though it is not in the running for a Clawbie)

We encourage our readers to get in on the Clawbies by nominating your favourite Canadian law blogs. Instructions for how to do so are here, and for those of you who don’t have your own blog or Twitter account, we understand you can use the Clawbies “Contact us” page here to email nominations.

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Alberta Introduces Amendments to PIPA

Fri, 12/12/2014 - 9:00am

By: Ronaliz Veron

PDF Version: Alberta Introduces Amendments to PIPA

Bill Commented On: Bill 3, Personal Information Amendment Act, 3rd Sess, 28th Leg, Alberta, 2014

On November 15, 2013, the Supreme Court of Canada held in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (AIPC v UFCW) that Personal Information Protection Act, SA 2003, c. P-6.5 (PIPA) and Personal Information Protection Act Regulation, Alta Reg 366/2003 (PIPAR) violated section 2(b) of the Charter of Rights and Freedoms, as they limited a union’s ability to collect, use, or disclose personal information in a lawful strike (See Linda McKay-Panos’ post on the decision). In oral argument, the Attorney-General of Alberta and the Information and Privacy Commissioner indicated that, if they were unsuccessful, they would prefer to have the entire legislation struck down to allow the legislature to re-consider PIPA as a whole. Acknowledging the comprehensive and integrated structure of PIPA, the Supreme Court declared it invalid but suspended the declaration of invalidity for a year to give the Alberta legislature ample time to make the necessary amendments (AIPC v UFCW at paras 40-41).

In an open letter dated September 22, 2014, Information and Privacy Commissioner, Jill Clayton, expressed concerns about the effect of the delayed start to the legislative session on the status of PIPA. The third session was set to open November 17, 2014, two days after PIPA was scheduled to lapse. In particular, she noted:

If PIPA is allowed to lapse, Alberta’s citizens and businesses will lose the unique benefits afforded by the legislation, including: mandatory breach reporting and notification to affected individuals, local enforcement without court involvement, and protection for the access and privacy rights of employees of provincially-regulated private sector businesses.

In response to this letter, Premier Prentice filed a motion to extend the suspension of invalidity in the Supreme Court. On October 30, 2014, the Supreme Court granted the Alberta government a 6-month extension to amend PIPA (see here at page 1778). As a result, PIPA remains valid until May 2015. The Alberta legislature, however, did not wait until the expiry of the extension before introducing an amendment to PIPA. On December 1, 2014, Bill 3, Personal Information Amendment Act, 3rd Sess, 28th Leg, Alberta, 2014 passed Third Reading.

Amendments to PIPA

Bill 3 introduces significant changes to PIPA in relation to trade unions engaged in a labour dispute. It allows trade unions to collect, use, and disclose personal information about an individual without his or her consent if two conditions are satisfied. First, the collection, use, or disclosure of information must be reasonably necessary for the purpose of informing or convincing the public about an important public interest issue in a labour relations dispute. Second, it must be reasonable to collect, use, or disclose personal information without consent after taking into account all relevant circumstances, including the nature and sensitivity of the information (See ss. 14.1(1), 17.1(1) and 20.1(1)). These changes appear to be made in response to the Supreme Court’s ruling in AIPC v UFCW.


Bill 3 essentially removed the blanket prohibition against the collection, use, and disclosure of personal information without consent. This narrow amendment attempts to balance the union’s right to freedom of expression with privacy interests protected by PIPA. While such amendments will make notable changes concerning trade unions in a labour dispute, this is far from a dramatic overhaul of our privacy legislation. During the debates in the legislature, opposition MLAs expressed doubts about whether Bill 3 actually addresses the whole spirit of the Supreme Court decision. For example, they expressed concerns about the limits of the application of the Bill to disclosure of personal information during labour disputes, and not in the context of other union activities (e.g., social justice contexts) (See: Alberta, Legislative Assembly, Hansard, 28th Leg, 3rd Sess, No 10e (1 December 2014) at 259-265 (David Eggen, Kent Hehr, Deron Bilious, Brian Mason and Rachel Notley)). It remains to be seen whether or not the Alberta government will introduce broader and more comprehensive changes to PIPA that will accommodate not only the freedom of expression of unions in a labour dispute but the interests of other social and political groups as well.

Now that Alberta has taken the lead in amending PIPA to make it consistent with the Charter, it will be interesting to see how and when the federal government and other provinces with similar privacy legislation will follow suit.

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Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

Thu, 12/11/2014 - 9:00am

By: Jonnette Watson Hamilton

PDF Version: Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

Case Commented On: McMorran v Alberta Pension Services Corporation, 2014 ABCA 387

The Court of Appeal decision in McMorran v Alberta Pension Services Corporation determines an instrumentally important question in the pension and matrimonial property law areas. In addition, it is procedurally unusual for two reasons. First, although it is a matrimonial property action, the dispute is really between Justice Robert Graesser, the Court of Queen’s Bench judge who rendered the decision appealed from (McMorran v McMorran, 2013 ABQB 610) and the administrator of the Alberta public service pensions plans, the “appellant” by court order in the Court of Appeal — i.e., not between the former husband and wife who are both “respondents”. Second, the concurring judgment of Justice Thomas Wakeling disagrees with the majority judgment of Justices Ronald Berger and Frans Slatter on one statutory interpretation point, but no consequences appear to flow from that disagreement and the two judgments do not engage with each other on the point. The reasons for two separate judgments are not made explicit, but they appear to be a result of different perspectives on the value of judicial economy. And in these days of legal and public focus on access to justice issues and the need for a “culture shift” in the current legal system, I think it is important to consider whether we can afford judicial extravagance.

A. Facts

Catherine McMorran (the first wife) and Scott McMorran (the husband) divorced in 2002. In 2003, a consent matrimonial property order provided that the first wife had an ownership interest in the husband’s Special Forces Pension Plan equal to one-half of the pension that accrued during their marriage, and that her ownership interest would be realized when the husband retired and started to draw the pension. At the time of the divorce, the husband had been a member of the pension plan for about 15 years. He remarried in 2005 to his (unnamed) second wife and he retired in 2011 after 22 years of pensionable service.

B. Court of Queen’s Bench Decision

Justice Graesser determined that, under the terms of the 2003 consent matrimonial property order, the first wife was entitled to a 50% interest in 15/22nds of the husband’s pension. The husband was entitled to the other 50% interest in 15/22nds of his pension, plus a 100% interest in the remaining 7/22nds. He also decided that the husband should elect a “joint life not reduced pension” with the result that his pension during his life would be smaller, but on his death the pension of his survivors would not be reduced; that the first wife was entitled to take her interest in monthly payments; and that the husband, the “participant” in the pension plan, had to name his first wife as his “pension partner” for her share of the pension. There was no appeal from those parts of Justice Graesser’s order.

The problem with those parts of the order, as far as Justice Graesser was concerned, was their consequences for the second wife. Naming a “pension partner” determines how long a pension will last; all benefits under the pension end after the participant and his pension partner die. In this case that meant that, if the husband predeceased the first wife, then his second wife would be entitled to his portion of the pension (the other 50% interest of 15/22nds and the 100% interest in the remaining 7/22nds). But if both the husband and the first wife predeceased the second wife, the pension would end and the second wife would receive nothing.

Justice Graesser did not think it fair that the second wife did not receive her own share of her husband’s pension. As a result, he took the unusual step of inviting counsel and the pension plan administrator to make submissions about whether the second wife could also be a “pension partner” (ABQB at para 68), a point not raised by the parties in their arguments. He decided that more than one “pension partner” could be designated under the Special Forces Pension Plan. As a result, the challenged paragraph 5 in his order provided:

5. It is further ordered that the Plaintiff shall be at liberty to elect a different pension partner for the portion of the pension that is not the Defendant’s Share, and can elect a normal pension for his remaining share of the pension.

C. The Court of Appeal Decision

Paragraph 5 of Justice Graesser’s order was the only part of the order that was appealed. The appellant was the Alberta Pension Services Corporation. It was granted standing to appeal based on section 34(1) of the Public Sector Pension Plans (Legislative Provisions) Regulation, Alta Reg 365/1993: “If, on the filing of a matrimonial property order, the Minister is unable to comply with it because . . . it does not comply with this Part . . . , the Minister may apply to the Court to redress the situation arising from that inability so to comply.”

This appeal was therefore an appeal on a question of law involving a narrow, albeit instrumentally important, point of statutory interpretation, namely, whether the term “pension partner” in section 2(1)(dd.1) of the Special Forces Pension Plan Regulation, AR 369/93 could be interpreted to include more than one pension partner.

(1) The Majority Opinion

Justices Ronald Berger and Frans Slatter wrote a 23 paragraph opinion that struck paragraph 5 of Justice Graesser’s order.

(a) Standard of review, burden and onus

In discussing the standard of review, in addition to noting that Justice Graesser’s decision had to be correct because the interpretation of statutes is a question of law, the majority accorded “deference to the decision of the [pension plan] administrator” (at para 10). The “decision” of the administrator that they referred to was the administrator’s opinion, proffered to both Justice Graesser and to the Court of Appeal, about whether Justice Graesser’s order was consistent with the provisions of the Special Forces Pension Plan Regulation.

Why the deference to the administrator and not the judge? The specialized role of the pension plan administrators is recognized in the provision that gives the administrator standing and also in other provisions in the Public Sector Pensions Plans Act, RSA 2000, c. P-41. Relying on Nolan v. Kerry (Canada) Inc., [2009] 2 SCR 678, 2009 SCC 39 (CanLII), which was a more traditional judicial review of an actual decision of the Financial Services Tribunal, the majority noted (at para 10) that “[t]he funding, interpretation, and administration of a pension plan are complex” and “[t]hose charged with administering the plan will develop an expertise in its interpretation and management”. This endorsement of expertise and the administrator’s mandate under the legislation to represent the interests of all participants in the pension plan, present and future, led the majority to hold that “[s]ignificant weight should be placed on the position of the administrator as to whether particular arrangements are consistent with the plan” (at para 10).

As a result, and even though the administrator was styled the “Appellant” in this appeal, the majority held that “the burden is on the claimants to demonstrate the administrator’s conclusion” that “a particular agreement or proposed court order would interfere with the actuarial foundations of the plan” was “unreasonable”, and “the onus is also on the claimants to prove that any decision of the administrator on the proper interpretation of the plan is unreasonable” (at para 10). The first wife supported the administrator’s position, but the husband benefited from Justice Graesser’s interpretation and thus the onus and burden were, effectively, on him.

(b) Can there be more than one pension partner?

The majority sets out a number of reasons why the definition of “pension partner” did not support an interpretation of multiple pension partners. The relevant portion of that definition is:

(dd.1) “pension partner” means

(i) a person who, at the relevant time, was married to a participant or former participant and had not been living separate and apart from him or her for 3 or more consecutive years, or … (emphasis added)

The majority characterized the phrase “at the relevant time” in the definition of pension partner as “somewhat enigmatic” (at para 14). The most logical time might seem to be the time when the participant in the pension plan began to receive the pension, i.e., when the pension went “into pay”. But at the time the husband’s pension went into pay in this case, the first wife did not qualify under the definition because the couple had been divorced for nine years. The majority held that “at the relevant time” had to include more than the time when the pension went into pay or else the definition would have specified “at the time the pension goes into pay”. The “relevant time” could therefore encompass cases where that time was “at the time their interest accrues under the terms of a matrimonial property order.” (at para 14)

As for the issue of whether the definition of “pension partner” would allow for the naming of more than one such person, counsel for the administrator argued and the majority accepted that:

  • The phrase “a person who, at the relevant time, was married to a participant”, given its ordinary meaning, would contemplate only one “person” because Canadian law contemplates only one spouse at any “relevant time” (at para 15).
  • Including more than one pension partner in effect turns the phrase “at the relevant time” into “at any time” (at para 15).
  • The definition of “pension partner” goes on to include a cohabitant if no one is married to the participant (at para 15).
  • Adding a third party such as the second wife who might receive benefits after both the husband and first wife die would create benefits for which no reserves had been set aside because the pension plan is funded on actuarial assumptions based on two lives, the participant’s and his or her pension partner’s (at para 16).
  • Pensions are funded based on actuarial calculations which require certainty about the number of people who might receive pension benefits and their life expectancies (at para 17).
  • The second wife knew or ought to have known, when she married the husband, that his first wife had an interest in his pension (at para 20).
  • The generic provisions of the Interpretation Act, RSA 2000, c I-8, section 26(3), which provides that “[i]n an enactment, words in the singular include the plural” are inapplicable and inappropriate in the circumstances (at para 21).

The majority therefore concluded (at para 22) that the definition of “pension partner does not support an interpretation that a pension participant can have more than one pension partner.”

(2) The Concurring Opinion

Justice Wakeling, in his concurring opinion, took 70 paragraphs to reach the same conclusion. He stated the issue somewhat differently (at paras 28 and 29), following the challenged paragraph 5 more closely, as a question of whether the matrimonial property order in this case could divide the husband’s pension into two or more discrete units, each of which could have a different pension partner (first wife versus second wife) and payout scheme (“joint life not reduced pension” versus “normal” pension). He concluded in his “Brief Answers” at the beginning of his opinion that the definition of “pension partner” in the relevant legislative context “inexorably leads to the conclusion that a pensioner may have only one pension partner” (at para 32) and that the husband’s pension is “one indivisible whole” (at para 33).

After setting out the facts, quoting the relevant statutory provisions, examining the values underlying pension plan administration, summarizing the pension plan administrator’s arguments, and reviewing the law about the distribution of these pension benefits on marriage breakdown both before and after major changes in 2003 (that disallowed orders of the type made in this case), some principles of statutory interpretation, and the purpose of the pension plan legislation, Justice Wakeling determined (at para 73) that the outcome of the appeal turned on the meaning of “pension partner.”

Justice Wakeling noted that section 2(1)(dd.1) of the Special Forces Pension Plan “unequivocally reveals” that a participant may have only one pension partner and that pension partner “has easily identifiable criteria at a very specific time — ‘at the relevant time’” (at para 80). It is with respect to the interpretation of the phrase “at the relevant time” that Justice Wakeling disagreed with the majority. He indicated there was no disagreement about what the phrase “at the relevant time” meant, stating that “[b]oth counsel informed us that ‘at the relevant time’ means when the ‘pension goes into pay’”, i.e., when the husband started receiving his pension (at para 81). Justice Wakeling also stated, albeit in a footnote, that “[a] careful review of the Special Forces Pension Plan in force as of June 23, 2003 supports this interpretation” (at footnote 47). Nevertheless, Justice Wakeling did not discuss the implications of this different interpretation of “at the relevant time”, nor did he discuss whether the first wife qualified if section 2(1)(dd.1) is interpreted that way. He simply noted that a pension only goes into pay once (at paras 81-82) and then moved on to discuss that there can only be one form of pension and one pension partner (at para 83).

Justice Wakeling decided that both the language of the relevant statute and the administration of the pension plan support his conclusion that there can be only one pension partner (at paras 84-89). He ended with a discussion of whether this interpretation is unfair, concluding that not only is it not unfair to the second wife for reasons similar to those advanced by the majority (at paras 90-91), but it is also fairer to all of the pension plan participants because Justice Graesser’s order would have burdened the pension plan by increasing pension payouts (at para 92).

D. Commentary

(1) The Interpretation of “Pension Partner”

Pensions have long been one of the most contentious types of matrimonial property for two reasons: their valuation and their method of distribution. See Jonnette Watson Hamilton and Annie Voss-Altman, The Matrimonial Property Act: A Case Law Review (2 October 2010). However, distribution between the former spouses was not the issue in this case. Instead it was a question of distribution among all spouses, past and present, of the pension participant, and not only in this particular case. Had Justice Graesser’s interpretation stood, it could have been adopted by other judges and by couples and lawyers negotiating property divisions on relationship breakdowns in cases where the same definition of pension partner applied.

The idea that a second spouse could be added appears to be a novel notion. It seems fairly obvious that paying one pension for the lives of three people would usually cost more than paying one pension for the lives of two people. And if a second spouse is included, why not a third?

This case illustrates the utility of section 34(1) of the Public Sector Pension Plans (Legislative Provisions) Regulation, the section that allows the Minister to apply to the Court when a matrimonial property order does not comply with the pension plan regulation and administration. Someone needs to represent the interests of all of those financially dependent on the pension plan and its long-term fiscal health. However, the Court of Queen’s Bench did not accord deference to the expert opinion of the pension plan administrator and the administrator in this case still needed to apply for standing before the Court of Appeal, necessitating an extra court application. The standing and role of the pension plan administrator could be specified in the regulations in order to simplify and lower the costs of the process.

(2) The “Parties” to the Appeal: Justice Graesser and the Alberta Pension Services Corporation

Justice Wakeling notes (at footnote 17) that the challenged part of Justice Graesser’s order — paragraph 5 — granted relief that had not been sought by the husband. It was Justice Graesser’s initiative. Justice Wakeling noted that a court should be reluctant to raise, on its own initiative, a new issue, if only because it increases the parties’ costs. While paragraph 5 of Justice Grasser’s order favoured the husband and was therefore adopted by him, paragraph 5 was strictly the court’s idea. The husband would not have had to defend it before the Court of Appeal had it not been for Justice Grasser’s initiative.

The majority opinion says nothing about costs, but Justice Wakeling’s opinion concludes with the direction that “[e]ach party is responsible for its own costs” (at para 94). While it is true that the husband benefited from Justice Graesser’s paragraph 5, that relief was granted on Justice Graesser’s own initiative. It is not clear why all three parties were required to bear their own costs in such circumstances. No reasons are offered for this part of the Court of Appeal’s decision.

The addition of the pension plan administrator as the appellant is another unusual aspect of this case. Being cast as the “Appellant” seemed inappropriate. The arguments of the administrator were treated more like the reasons for decision of an administrative tribunal. This is another reason for the relevant legislation to specify the role of the administrator.

(3) Justice Wakeling’s Extravagant Reasons for Decision

Given that Justice Wakeling’s different interpretation of “at the relevant time” did not seem to make a difference to the result or have any consequences for the parties, and given the lack of engagement on that point between the majority and the concurring opinions, was Justice Wakeling’s 70 paragraph, 55 footnote judgment necessary or desirable as an alternative or addition to the majority’s 23 paragraph disposition of the issue before the court, i.e., the legitimacy of paragraph 5 of Justice Graesser’s order? That is the question I address in this part of my post. And it is not simply a question about Justice Wakeling’s judgment in this particular case.

A review of those of Justice Wakeling’s written judgments that have been posted to the Alberta Courts Court of Appeal website since his appointment to that Court in March 2014 (which followed his appointment to the Court of Queen’s Bench in February 2013), reveals an approach to judgment writing that is often the opposite of judicial economy and an unusual decision-making style. His judgments are often lengthy due to the inclusion of matters that do not need to be discussed in order to resolve the matter before the court. This is especially true of the content of some of his footnotes.

Judicial economy” describes a sort of judicial minimalism or judicial restraint, i.e., saying no more than necessary to justify the outcome of a case. See my October 2014 post, Disagreement in the Court of Appeal about the Wisdom of Judicial Economy. It seems to me that the concept of judicial economy has a role to play in access to justice. In Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 — the oft-heeded and much-expanded-upon decision increasing the availability of summary judgments — Justice Karakatsanis, for a unanimous court, wrote about the “recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system” (at para 2). In elaborating on what a shift in culture requires, she enunciated the “proportionality principle”:

A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure (at para 28).

Justice Karakatsanis elevated the status of the proportionality principle to that of “a touchstone for access to civil justice” (at para 30). The Court endorsed an understanding of “an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation” (at para 31).

The Action Committee on Access to Justice in Civil and Family Matters October 2013 Final Report, Access to Civil and Family Justice: A Roadmap for Change, had previously identified a culture shift as something that is urgently needed: “a new way of thinking — a culture shift — is required to move away from old patterns and old approaches” (at 5). Of the six guiding principles that make up this new culture, two seem especially relevant to the concept of judicial economy:

  • Put the public first: “For example, court processes — language, location, operating times, administrative systems, paper and filing requirements, etc. — typically make sense and work for lawyers, judges and court staff. They often do not make sense or do not work for litigants. The focus must be on the people who need to use the system” (at 7).
  • Simplify, Make Coherent, Proportional and Sustainable: “Our current formal procedures seem to grow ever more complicated and disproportionate to the needs of the litigants and the matters involved. Everyday legal problems need everyday solutions that are timely, fair and cost-effective.” (at 8)

How do these ideas fit with the concept of judicial economy? The advantages of judicial economy identified by Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard University Press, 2001) at 4-5 were three. First, it reduces the burdens of judicial decisions, especially on multi-member courts. It might mean, for example, fewer concurring decisions. Second, and more importantly, it ensures that fundamental errors are made less frequently and are less damaging. The more that is said, especially on matters not argued by counsel, the more that might be wrong. Third, it reduces the risks of unanticipated bad consequences as a result of intervening in a complex system. I would add that resources are freed up by restricting decisions to narrow grounds, whether those resources are a judge’s time and energy, judicial clerks’ time and energy, or the parties and/or their counsel’s time, energy and money.

As I have already noted, Justice Wakeling’s approach to judgment writing is unusual. Not only are his judgments often lengthy, with discussion of matters only peripherally related to the issues before him, but they are often heavily footnoted. In this particular case he used 55 footnotes, a large number of which are textual footnotes with “asides” on substantive points, and not simply footnotes citing the authority for a particular point in the text. They often reference English or American authorities, or dissenting opinions. Some pose hypotheticals. To substantiate these points, lengthy quotations from a few of these footnotes are necessary (and see also footnotes 15, 18, 24, 32, and 51):

  • Footnote 17 (which is over 500 words long and has therefore been edited): “Mr. McMorran did not apply for this relief. The chambers judge put the interest of Mr. Morran’s [sic] second wife into issue on his own motion. . . . This initiative of the motions court brings to mind Justice Cardozo’s admonition that a judge ‘is not a knight-errant roaming at will in pursuit of his own ideal of beauty and goodness’. The Nature of the Judicial Process 141 (1921). Generally speaking, a court should be reluctant to raise, on its own motion, a new issue, the resolution of which will not affect the dispute the parties have asked the court to resolve. There may be good reasons which account for the failure of the parties to present the question. In addition, additional submissions drive up the costs for all parties. As well, a court must always consider whether by raising a new issue “a reasonable, right-minded and informed person [would] conclude it [was] probable that the adjudicator was not impartial”. Bizon v. Bizon, 2014 ABCA 174, ¶49. See The Queen v. Mian, 2014 SCC 54, ¶39 (“When a judge … intervenes in a case and departs from the principle of party presentation, the risk is that the intervention could create an apprehension of bias”). This concern was not engaged here. . . . To say more may be inappropriate given that the appellant did not put into issue the propriety of the chambers judge raising and deciding this new issue. See The Queen v. Mian, 2014 SCC 54, ¶41 (“An appellate court should only raise a new issue when failing to do so would risk an injustice”) & District of Parry Sound Social Services Administration Board, [2003] 2 S.C.R. 157, 206 (“The Court of Appeal erred in raising this issue, not chosen by the parties” per Major J.) On the other hand, courts have frequently adopted different solutions to disputes from those proffered by the parties to resolve disputes the litigants have presented for resolution. E.g., Reference re Provincial Court Judges, [1997] 3 S.C.R. 3, 175 (in determining the nature of the s. 11(d) Charter values – an independent and impartial tribunal in criminal proceedings – the majority, on its own motion, introduced the concept of judicial compensation commissions); . . . .
  • Footnote 38: A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 31 (2012) (“A fundamental rule of textual interpretation is that neither a word nor a sentence may be given a meaning that it cannot bear”) & F. Frankfurter, “Some Reflections on the Reading of Statutes”, 47 Colum. L. Rev. 527, 543 (1947) (“violence must not be done to the words chosen by the legislature”). See Henry v. Saskatchewan Workers’ Compensation Board, 172 D.L.R. 4th 73, 110 (Sask. C.A. 1999) (the dissent lamented the majority’s focus on the purpose of workers’ compensation legislation – “To protect workers and their dependents from the hardship of economic loss sustained through injuries suffered by the worker in the cause of his employment”: “It is inconceivable to me … that the legislature … provide[d] coverage for suicides [in its workers’ compensation legislation] but drafted this enactment so that only the most perceptive [judges] would recognize their intention”); City of Prince Albert v. Co-Op Health Centre, 42 D.L.R. 4th 706, 709 (Sask. C.A. 1987) (the dissent rejected the assertion that a medical clinic was a hospital: “[Legislation] could say black is white for certain purposes and it would be so. However, I do not think it is unreasonable to require the legislators to use clear and unequivocal language if they intend to produce a result contrary to that which is the product of reasonable expectation”) & Roschen v. Ward, 279 U.S. 337, 339 (1929) (“There is no canon against using common sense in construing laws as saying what they obviously mean”).
  • Footnote 39: Olmstead v. United States, 277 U.S. 438, 470 (1928) (Justice Holmes, dissenting from the Court’s opinion that a telephone wiretap intercept is not a search under the Fourth Amendment, observed that “Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them”) & Johnson v. Southern Pacific Co., 196 U.S. 14 (1904) (in holding that a statutory ban against a railroad using “any car … not equipped with couplers coupling automatically by impact and which can be uncoupled without necessity of men going between the ends of cars” included locomotives, the Court declared that the contrary conclusion “appears to us to be inconsistent with the plain intention of Congress, to defeat the object of the legislation, and to be arrived at by an inadmissible narrowness of construction”).
  • Footnote 43: Why would an employer insist that bereavement not be available if two parents died in a common accident? An employee, most likely, would be away from work the same amount of time whether he or she was mourning the death of one or two parents.
  • Footnote 54: A court could not order an enhanced payout scheme for the second wife just because she might need more money to help her cope with a foreseeable income shortfall. Isidore Garon ltée v. Tremblay, [2006] 1 S.C.R. 27, 41 (“A desire to achieve a favourable outcome to the employees in a particular case cannot dictate which principles apply”); Alberta v. McGeady, 2014 ABQB 104, ¶23 (“No … decision maker can ignore substantive statutory provisions because it believes [it] … produces unfair results and adopt another norm which it is satisfied produces a more satisfactory result”); J.W. v. Victims of Crime Financial Benefits Program, 2013 ABQB 212, ¶35 (a “statutory delegate … cannot ignore … legislative direction”); Hamilton Street Railway v. Amalgamated Transit Union, 243 O.A.C. 51, 54-55 (Super. Ct. J. (Div. Ct.) 2008) (an arbitrator cannot alter a dismissal clause by inserting “flagrant” and changing the criterion) & International Association of Machinists and Aerospace Workers Local Lodge 1579 v. L-3 Communications Spar Aerospace Ltd., 201 L.A.C. 4th 85, 153 (Wakeling 2010) (an adjudicator cannot ignore legislation and a collective agreement to assist workers who lost their jobs on account of a plant closure and received no termination or severance pay).

Not all of Justice Wakeling’s footnotes are textual ones making substantive points that might raise a question about whether they can be cited as authority. Some are simple citation footnotes, and still others establish acronyms or other short forms of names. The latter type of footnotes are simply matters of style. For example, in Edmonton (City) v Edmonton (Subdivision and Development Appeal Board), 2014 ABCA 337, a 27 paragraph, 5 footnote decision on an application for leave to appeal, three of Justice Wakeling’s five footnotes merely establish short forms or acronyms, as for example when footnote 1 states that “This judgment frequently refers to the City of Edmonton as the ‘City’”. These are the sort of things that most judges indicate by including the short form or acronym in brackets after the first use of the term in the text (e.g., “This is an application by the City of Edmonton (the City) for leave to appeal”).

This style of judgment writing does seem to be Justice Wakeling’s norm when he is writing for himself in a concurring or dissenting judgment or on an application for leave to appeal. For example:

  • In the December 2, 2014 decision in Buffalo Trail Public Schools Regional Division No. 29 v Alberta Teachers Association, 2014 ABCA 407, his 46 paragraph, 28 footnote dissent can be contrasted with the majority’s 17 paragraph, no footnote judgment;
  • In the December 2, 2014 sentence appeal decision in R v Murphy, 2014 ABCA 409, his 68 paragraph, 74 footnote concurring decision stands out when juxtaposed with the majority’s five paragraph, no footnote decision;
  • In the May 6, 2014 decision in Can v Calgary (Police Service), 2014 ABCA 322, his 162 paragraph, 134 footnote concurring opinion stands in stark contrast to the 12 paragraph, no footnote decision of the majority; and
  • His May 12, 2014 leave to appeal decision in Boychuk v Edmonton (Police Service), 2014 ABCA 163 ran to 60 paragraphs and 44 footnotes.

Only two of the Court of Appeal cases in which Justice Wakeling has been involved have explicitly referenced the notion of judicial economy, but they do so as a reason for not signing on to his opinions. These are examples of judicial extravagance increasing the burdens of judicial decision-making in a multi-member court. Those two cases are:

  • In a May 21, 2014 decision in Bizon v Bizon, 2014 ABCA 174, Justices Picard and Costigan concur in four short paragraphs with the result of Justice Wakeling’s 86 paragraph, 46 footnote decision. They noted that they agreed with the reasons in paragraphs 66-77 of his judgment and, because that was sufficient to dispose of the issues, stated that “it is unnecessary for us to consider the other issues discussed in the memorandum of judgment of Wakeling J.A.” (at para 89).
  • In a June 25, 2014 decision in Lubberts Estate (Re), 2014 ABCA 216, the two paragraph decision of Justices Picard and Veldhuis concurs in the “conclusion reached by Justice Wakeling that the decision of Justice Ross … is well written and carefully reasoned, and that this appeal must be dismissed [and] finds her decision sufficient to dispose of all issues” (at para 80). This terse comment stands in stark contrast to the 78 paragraph, 44 footnote decision of Justice Wakeling that addresses numerous “other matters” that Justices Picard and Veldhuis found unnecessary to consider.

Justice Wakeling’s approach seems out of step with the stated need for a “culture shift” within the Canadian judicial system and the Supreme Court of Canada’s call for “proportionality.” In the year since Hryniak v Mauldin was handed down, it has been extended by lower courts and counsel within and beyond the summary judgment context. See Jonathan Lisus, “Case Comment” The Advocates’ Journal (Summer 2014) 7 at 8-9, noting that Hryniak’s talk of a culture shift has been seized upon in lower courts, as has the emerging doctrine of procedural proportionality in the Canadian justice system which takes into account the appropriateness of process, including considerations of cost, timeliness, and impact on litigation given the nature and complexity of the litigation.

Embracing judicial economy and deciding on narrow grounds appears to fulfill many of the goals of a culture shift identified in Hryniak v Mauldin. The principle of proportionality embraced by the Supreme Court would seem to demand judicial economy. Not only does it reduce the burdens of judicial decisions on multi-member courts faced with judicial extravagance, but it ensures that fundamental errors are kept to a minimum. Access to justice concerns suggest that the time and resources that go into crafting the elaborate judgments of Justice Wakeling — and reading them — are extravagances that the legal system and the public can no longer afford.

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