Friday, February 29, 2008

Human Rights Commissions: A Reader Wants To Know

Frequent commenter Allan was apparently perturbed that I devoted space to last weekend's Mats Sundin trade deadline saga:

"Mats Sundin to Stay a Leaf" yeah a really important topic.

You have been strangely silent about your darling friends on the kangaroo courts.

I wonder why.

You're right Allan, Mats Sundin doesn't matter.

Ezra is where the real action is.

And speaking of Ezra...

Mr. Levant is now embroiled in yet another controversy that may find its way to the courts.

This time, it is with Richard Warman, a Canadian human rights advocate and lawyer, who is threatening litigation over certain blog articles by Mr. Levant that are alleged to be defamatory.

On February 24, 2008, Mr. Levant posted a PDF of correspondence received from Mr. Warman's lawyer, Brian Shiller, alleging libel against Mr. Levant and demanding "complete retractions" by Mr. Levant of certain, specified postings that are excerpted in the letter.

Beyond that, I've said much on free speech and Canada's human rights commissions already.

Readers know where I stand.

And particularly given the bang-up job Big City Lib has been doing with this topic, I'm note sure I have much to currently add.

BCL, by the way, has been on fire this week.


Dave at the Galloping Beaver has been discussing a real censorship issue, now playing courtesy of the Stephen Harper government.

Mr. Harper has introduced changes to the Income Tax Act that would allow the government retroactively "to pull financial aid for any film or television show that it deems offensive or not in the public's best interest – even if government agencies have invested in them."

The Harper government plans to use the Income Tax system as a weapon to stifle anything they don't like - after it's made. It's a weapon and it is censorship. Once this bill passes no producer of Canadian film or television will know if they have the advantage of the Income Tax Act. The Canadian Revenue Agency won't be able to determine, based on a set of strict guidelines either. So a producer will never know, until after the government views the finished product, if a Canadian production meets the Harper government's unpublished standards.

In short: If you don't toe our line, we have the power to cause you personal financial damage.

Scott Tribe has pointed us to a Facebook Group, Keep your censoring hands off of Canadian film and TV! No to Bill C-10!, which is a grass-rooots effort to oppose this legislation, initiated by Professor David Kahane of the University of Alberta's political science department.

Also see Critics slam plan to limit funds for 'offensive' films from CTV News.

- Garry J. Wise, Toronto

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Clinton 2.1

As the campaign for the Democratic Presidential nomination approaches its next crescendo, with Monday's crucial Texas and Ohio primaries nearly upon us, it certainly looks like Barack Obama's momentum is going to be very tough to stop.

Nonetheless, I am increasingly wanting to see Hillary Clinton pull it off.

I still like Barack Obama's candidacy. But nothing I have seen in this long nomination fight - and I have been watching closely - has remotely persuaded me that he is the superior of the two candidates or likely to make a better President of the United States than Mrs. Clinton.

I remain convinced that Mrs. Clinton is much beyond Mr. Obama in readiness, expertise and ultimate ability to deliver the substance and leadership America requires.

We have heard much discussion about the Obama magic - perhaps, far too much. Concurrently, there has been a paucity of genuine analysis as to why Hillary has left so much of her support behind.

I am starting to think it is because she has made the same mistake Al Gore made.

She has failed to embrace and harness her greatest potential strength - her central role as part of the extremely prosperous Clinton years. Her tenure as First Lady really is where her superior expertise and experience arose. She has failed to make the most of that.

Bill Clinton was one of America's most successful and popular recent presidents. His administration's record on the economy, race relations, domestic policy and international affairs speaks for itself.

Mrs Clinton should have attempted to capture America's imagination by presenting herself as a culmination and renewal of all that was positive and hopeful in the Democratic, Clinton past. Her candidacy's inherent breakthrough in Washington gender politics is no small part of the admirable Clinton legacy. She needs to own that.

Deepening the campaign' s problem, Mrs. Clinton has lost available potency in failing to make the not-unimportant point that it was the very enemies of the Clinton presidency - the same operatives who pushed the Lewinsky debacle to the brink of impeachment - who have in the last seven years nearly taken America to the brink

It was the same cast of characters, in fact, who subsequently gave the nation years of Republican ineptitude and turpitude. The same gang that was unanimously behind a never-ending litany of policy blunders that have left America winded, the U.S. dollar wounded and the balance of world scratching its head.

Conventional wisdom was that it would be bad for Mrs. Clinton to reopen the old wounds of yesteryear's fights by "going there" and discussing the Clinton years as a central focus of her platform.

That was and is a mistake - particularly given that conventional wisdom these days is all-too-often just a repackaging of talking points, spun by Republican strategists and planted in the collective ear of professional punditry for ultimate public consumption.

I suspect it is Republican strategists who don't relish the reopening of argument on the Clinton era.

Hindsight in America allows for the connecting of dots between Clinton's impeachers and their subsequent ineptitude in government. And recent history allows us to look back at the impeachment process as an all-too prescient indicator of the Republican hackery that was to follow.

Mrs. Clinton could have fought this campaign by forcing Republicans onto a turf that made them answer for their actions, ideologies and endless corruptions - yesterday and today.

In doing so, she may well have left Obama on the sidelines.

Beyond that, and bluntly, a genuine Hillary Clinton fight against Republican hackery would have been far more interesting to watch - and far more important for the nation - than yet another well-rehearsed and crafted Obama oratory.

Frankly, I think it still would be.

Mrs. Clinton now asks America to believe she is a fighter. But she has cowered from that fight.

Mrs. Clinton of all people - the first person to out the "vast right wing conspiracy" against the Clinton administration - is in quite a good position to say, "I told you this is who they are. This is how they act. And this is how they have nearly brought America to its knees."

She now needs to remind America that the Clinton years were good for America - and that the future can be even better - with her own version of Clinton 2.1 - a new administration ready to rebuild, invigorate and responsibly renew the modern American dream.

To date, her campaign has largely buried Bill Clinton - not just Bill Clinton the man, but Bill Clinton, the President, and Bill Clinton, the symbol.

It has seemed expedient at times, perhaps, but it hasn't worked.

She needs to borrow from the past.

As I recall it, Bill Clinton remained the one man America most wanted to hear from on 9-11, when Bush was in hiding and Cheney was still "undisclosed."

(Apologies to Rudy Giuliani)

Bill Clinton continues to have currency in America, even if he arguably has lost a bit of his fastball.

The Republicans wanted nothing more than to have Bill Clinton treated like a liability.

Mrs. Clinton has obliged.

She could have been elevated by her status as former First Lady, with her credibility sealed by her subsequent record in the Senate. Instead, she has almost entirely distanced herself from those largely-positive associations about her family's political legacy and has been left reeling by her vote to authorize the use of force in Iraq - her one, sort of real point of difference from Mr. Obama.

In the process, she has also lost her inherent advantage, and fallen right back into the jaws of a media machine that has been as complicit in stoking Obamamania as it was in hyping the Lewinsky affair and cheerleading for the Bush Administration and its zeal for war in Iraq.

It is now up to Mrs. Clinton and her campaign to change the subject.

And perhaps, Bill Clinton needs to get onto 60 Minutes or Larry King this weekend for a full hour, to speak about the nuts and bolts and details of how Mrs. Clinton participated, advised and led in her own right during his presidency. He needs to vouch - in an intimate, personal voice, as only he can - for her superior experience, talent and knowledge of Washington' rules of the road.

Obamamania may be getting a bit stale.

Mrs. Clinton has very little time to turn this around.

And it really is now or never for Clinton 2.1.

- Garry J. Wise, Toronto

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Wednesday, February 27, 2008

Ombudsman Slams Legal Aid Ontario, Province Sues Convicted Cop

According to media reports, the Ontario Government is suing convicted former Toronto Police officer, Richard Wills, to recover $1.2 M of public money spent on his "preposterous" defence of first degree murder charges arising from the death of his long-time lover, Linda Mariani.

Wills was convicted of the charges last fall and is serving a life sentence in the Kingston Penitentiary.

The whopping defence bill caught media and public attention after it was revealed through family court documents, filed as part of a separation agreement with his wife, that Wills was a millionaire when he surrendered to police.

It is alleged in the Province's lawsuit that Wills transferred his assets to his wife Joanne and sister Patricia Rogers, so that he would be eligible for Legal Aid. His wife and sister are co-defendants in the action.

In a contemporaneous development yesterday, Ontario Ombudsman, Andre Marin, released a scathing eighty-four page report titled A Test Of Wills yesterday.

The Ombudsman was scathing in his criticism of Legal Aid Ontario for its handling of the case. Quoted in a Toronto Star article today, Marin stated:

Legal Aid Ontario failed, and the Ontario taxpayers lost. So did the Ontario justice system...

Legal Aid Ontario chose to approve bills as long as the math was correct, without budget or limit, no matter how extravagant the costs or how needless the work... Worse still, it led judges, prosecutors and the ministry of the Attorney General to believe that things were in hand when they were not.

In his report the Ombudsman commented:

“People wanted to know how unconscionable sums of public monies came to be spent defending a man who, shortly before he was arrested, bragged about being a self-made millionaire.”

“He hived off his assets while abusing the generosity of tax-payers. He should have to reimburse the province for the legal fees wasted in his cause”

Read the National Post story$1.5M in Public Money Spent to Defend Wills,” published October 31st 2007, for the details of the funding.

- Shashi K. Raina, Toronto

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As the Press Turns...

"Barack-lash" (?) - America starts to sober up from a heavy dose of Obamamania.

- Garry J. Wise, Toronto

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Tuesday, February 26, 2008

Honda vs. Keays - Why It Matters

Rare is the employment law case that can capture the continuing attention of both the legal profession and the public.

Honda and Keays, however, is one such case.

For nearly three years, it has had Canada's employment law bar buzzing, the nation's mainstream media watching and much of the public taking notice.

The case, which was argued before the Supreme Court of Canada on February 20, 2008, will settle critical questions regarding employers' duties of accommodation and the availability and quantum of punitive damages to be awarded against employers who have flagrantly breached their duties to employees under the nation's human rights statutes.

Beyond that, as is clear from the Supreme Court's online Case Information Summary, the wide-ranging subject matter of this appeal goes to the root of key, unresolved issues in Canadian employment law:

  • The availability of punitive damages for wrongful dismissal if employer’s conduct was discrimination or harassment that breached human rights legislation
  • The relevance of principles applicable to contracts for peace of mind to punitive damages in an employment law context
  • Whether punitive damages award should be reduced on appeal without increasing compensatory damages;
  • Whether discrimination and harassment should be a separate cause of action;
  • Whether human rights legislation should be incorporated into individual employment contracts;
  • Effect of proportionality on compensatory and punitive damage awards;
  • Whether overriding and palpable error standard of review should be integrated with rationality standard of review.


Kevin Keays was employed at Honda Canada for 14 years. While he suffered from Chronic Fatigue Syndrome (CFS), a disability that caused ongoing, intermittent absences, he was an able and loyal employee throughout his career.

According to a landmark, April, 2005 trial Judgment by Mr. Justice J. R. MacIsaac of the Ontario Superior Court, during the final seven months of this employment, however, Mr. Keays was subjected to harassment and discrimination. Honda refused to accommodate, and ultimately, even acknowledge Mr. Keays' disability due to CFS. When Mr. Keays engaged counsel to assist him in mediating his dealings with Honda, the company retaliated. Honda rolled back previous medical accommodations offered to Mr. Keays and embarked on a course of transparent, progressive discipline against him for absences due to his illness. Ultimately, Mr. Keays' employment was terminated for insubordination when he refused to attend at a medical examination demanded by Honda.

At trial, Mr. Justice MacIsaac held that Honda had wrongfully dismissed and discriminated against Mr. Keays. The Court awarded Mr. Keays 15 months' pay in lieu of notice, together with further "Wallace" damages of nine months' additional severance, due to Honda's bad faith in conducting the termination.

Finally, Mr. Justice MacIsaac awarded Mr. Keays an unprecedented $500,000.00 in punitive damages, based on "Honda's outrageous mistreatment of their long term employee:

It now becomes clear why Honda wanted to have the plaintiff see Dr. Brennan. Mr. Keays' physicians were the problem because they would "certify" his absences like Sidney Crosby signs autographs after a hockey game. They were the villains because they perpetuated the myth that the plaintiff was required, by his illness, to be absent from work. He just hadn't been "hardened" enough and Honda was the GEC to do it with the able assistance of their advocate of employers' anti-absenteeism rights, Dr. Brennan. The subterfuge practiced by everyone associated with Honda in attempting to intimidate him to seeing their occupational medicine specialist should make the blood boil of an right-thinking individual. This scheme was nothing less than a conspiracy to insinuate Dr. Brennan into the plaintiffs long-established medical relationship with his own doctors and, hopefully, to exclude them from any participation in advocating for his patient's rights.

...I am not satisfied that the maximum penalty under the OHRC, $10,000, comes even close to an appropriate deterrence and denunciation of the outrageous and high-handed conduct of this defendant...

Taking into account all of the circumstances, including the compensatory awards already made,and having been persuaded that the conduct herein is deserving of significant denunciation, I award the plaintiff punitive damages in the amount of $500,000.

The judgment was hailed as a ground-breaking ruling, even as a Globe and Mail headline cryptically warned, Record award could open the floodgates.

In a 2-1 decision of the Ontario Court of Appeal, released in September, 2006, the punitive damages award against Honda was reduced to $100,000. In rollng back the original punitive damages award, the Court of Appeal attempted to balance the legitimate objective of "punishing" the employer against a requirement of proportionality based on the specific facts of the case.

The Ontario Court of Appeal found that $500,000.00 was not a "rational" punishment for Honda Canada's misconduct, after weighing the length and severity of the harassment and discrimination endured by Mr. Keays, considering the other damages awarded to him, and reviewing the range of punitive damages awards in comparative matters.

The Court of Appeal concluded that punitive damages in the amount of $100,000 were appropriate. In a dissenting opinion, Mr. Justice Goudge upheld the original $500,000.00 award.

Nonetheless, the Court specifically affirmed the use of a punitive damage awards as a sanction and significantly raised the bar as to the amount of punitive damages that may appropriately be awarded in such cases:

The punitive damage award in this case is on the same scale as awards in Whiten [$1 million] and Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 [$800,000]. Punitive damage awards in other wrongful dismissal cases have been far more modest even in the face of serious misconduct such as slander of the employee. The awards in such cases have been in the range of 15,000 to $50,000 and, rarely, up to $75,000.

In my view, a punitive damage award on the scale imposed in this case can be justified only by extraordinary circumstances of a similar nature to those in Whiten and Hill. Since Whiten, like this case, is a contract case, I found it to be the most reasonable comparator. Thus, I think it helpful in considering the application of the factors identified in Whiten, to bear in mind the facts of Whiten as they compare to this case.
Another factor mentioned in Whiten as part of the proportionality analysis is the need to consider the totality of all other penalties including compensatory damages imposed on the defendant. In this case, the trial judge had to bear in mind that he had already increased the damages for wrongful dismissal in accordance with Wallace v. United Grain Growers Ltd.,
[1997] 3 S.C.R. 701 for essentially the same conduct that attracted the punitive damage award. The trial judge stated that he was taking into account "all the circumstances, including the compensatory awards already made", but it is unclear on what basis he did so.

The final factor to be considered is the need for the punitive damage award to be proportional to the advantage wrongfully gained. As the court held in Whiten at para. 124: "A traditional function of punitive damages is to ensure that the defendant does not treat compensatory damages merely as a licence to get its way irrespective of the legal or other rights of the plaintiff." Even accepting the trial judge's finding that the appellant wanted to terminate the respondent because his prolonged absences were interfering with the smooth running of the operation, there is nothing on the record to show that the appellant saw the possibility of wrongful dismissal damages as nothing more than a licence fee.

I conclude by returning to the comparison of this case to Whiten. Two factors stand out when comparing the two cases. First, in Whiten there was a two-year period of escalating misconduct up to the trial. Here the misconduct was for no more than seven months and is largely focused on the events of March. I have already referred to the trial judge's mischaracterization of a five-year period of outrageous conduct. Although the trial judge identified one instance of late disclosure of a letter in the conduct of the trial, this does not extend the period of misconduct by Honda to the five years referred to by the trial judge. Second, in Whiten, the defendant persisted in its course of conduct, based on a theory that the plaintiff deliberately set the fire, in the face of repeated findings from its own experts and advisors that the fire was accidental. Binnie J. described the defendant's attitude to the plaintiffs at para. 4 as "harsh and unreasoning opposition" and an attempt to "exploit a family in crisis". That is not the case here. The appellant had advice, albeit wrong and based on incomplete information, that caused it to question the respondent's disability and it had, for almost a year, accommodated his absences.

I come then to the difficult problem of assessing the quantum of punitive damages bearing in mind the overarching principle that the award must be "that amount, and no less, [that is] rationally required to punish the defendant's misconduct" (Whiten at para. 96, emphasis in original).

Bearing in mind the trial judge's findings that can be supported by the evidence, and in particular the findings that the conduct by the appellant was planned and deliberate and designed to intimidate and ultimately terminate the employment of a particularly vulnerable employee and that the appellant was aware of its continuing duty to accommodate, an award in excess of those awarded in other wrongful dismissal cases is appropriate. But, given the compensatory damages awarded, especially the Wallace damages, and that there were no special factors requiring deterrence such as a pattern of abuse or the kind of conduct found in Whiten, as well as the relatively short duration of the misconduct, in my view, an award of no more than $100,000 can be justified

While perhaps less groundbreaking than the original trial judgment, the Court of Appeal's ruling in favour of Mr. Keays sent a strong message that Ontario courts may now award significant punitive damages against employers for the "independent actionable wrongs" of harassment, discrimination and failure to accommodate the medical requirements of disabled employees.

The trial and appeal decisions may well have marked the beginning of an era in which Courts will increasingly award significant compensatory and punitive damages in cases which involve supervisors' harassment, discrimination and derogatory conduct in the workplace. At very least, the decisions signalled significantly increased exposure for employers found to engage in such misconduct.


The Supreme Court of Canada's decision, however, may well determine whether the forecasted floodgates shall remain open or be reduced to a mere drip.

The Globe and Mail set the stage, in anticipation of the February 20, 2008 hearing:

When the case reaches the Supreme Court of Canada today, corporate managers, insurers and human-rights advocates will be watching intensely how the court interprets the evolving duty of an employer to accommodate an employee suffering from a debilitating condition.

In particular, the court must decide whether to uphold a punitive damage award of $500,000 - by far the largest ever in a Canadian employment context. Although the award was later reduced to $100,000 by the Ontario Court of Appeal, the punishment remained strikingly large - as was an award of 24 months of salary in lieu of proper notice, coupled with a legal cost award to the plaintiff of $610,000.

As if those stakes were not high enough, the landmark case will also induce the court to reconsider a 30-year-old Supreme Court decision that limited the ability of judges to award damages for violations of human-rights code guarantees.

More succinctly, the National Post calls it "One of the most anticipated wrongful dismissal cases of the decade."

Hugh Sher, lawyer for Mr. Keays commented prior to the Supreme Court of Canada hearing:

The Supreme Court of Canada is being asked to affirm the trial judge's award of punitive damages as well as to grant additional damages for discrimination and harassment against Honda...

... This case offers the Supreme Court a unique opportunity to consider the relationship between bad faith conduct, discrimination and harassment in the employment relationship and to determine the best way to compensate victims of such conduct and to punish the perpetrators. The Courts below have affirmed the paramount importance of human rights protections to ensure meaningful access to social and economic life for people with disabilities. However, a 30-year-old precedent from the Supreme Court prevents Courts from providing compensation for discrimination and harassment. The Court will be asked to reconsider this decision and to increase the number of tools available to Courts to address discrimination and harassment. This case raises legal issues of fundamental importance to people with disabilities across Canada and is being watched very closely by people with disabilities and employers across the country because of its significant impact.The trial award of punitive damages is by far the largest ever in an employment law case and represents one of the largest awards ever in Canadian history. Should it be maintained by the Supreme Court of Canada it would send a significant message to employers and insurers that people with chronic fatigue syndrome and related conditions must be taken seriously and that their claims to equal treatment, respect and consideration and to their just entitlement to benefits must be respected or employers and insurers will face significant penalties

Mr. Sher is also counsel to the National ME/FM Action Network, "a Canadian, registered, non-profit organization dedicated to advancing the recognition and understanding of Myalgic Encephalomyelitis / Chronic Fatigue Syndrome (ME/CFS) and Fibromyalgia Syndrome (FMS) through education, advocacy, support, and research."

The reach of the Court's ultimate decision in Honda and Keays will extend far beyond the law of disability and accommodation, according to the Womens Legal Action and Education Fund (LEAF), which had intervener status at the Supreme Court hearing:

Honda v. Keays also involves the issue of the ability of courts to grant awards of punitive damages based on discrimination as a separate actionable wrong. LEAF is interested in the issue of whether courts should award punitive damages for breach of human rights law. This directly impacts women as a group because women experience distinct forms of discrimination and harassment in their workplaces that make them vulnerable to serious violence, and that can be life threatening, LEAF is interested in the role that punitive damages could play in addressing and compensating for violations of human rights law, for example through the establishment of liability for employers for punitive damages associated with sexual harassment. Liability of employers for punitive damages would result in increased accountability on the part of employers, and could motivate them to provide safe working environments for women. Liability for punitive damages could provide for an increased incentive for employers to provide safe, discrimination-free, working environments for women.

Of particular interest to the Employment Law bar, however, is the extent to which the Honda and Keays case has affected life on the ground - in our offices and in the cases we see daily.

Daryn M. Jeffries, a partner with Toronto law firm Filion,Wakely, Thorup, Angeletti, represents management in employment law and labour relations matters. He observes,

There has been a definite increase in punitive damages claims and disability-related allegations since Keays was released. It is a rare Claim we receive now that does not include a claim for both extended notice and punitive damages. Wherever even a colourable claim for disability or stress can be made, we see it in the Claim. This was rare prior to Wallace and increased after Keays. The reduction in punitive damages at the Court of Appeal in Keays did not reduce the number of these types of Claims.

The original decision in Keays reinforced the advice that we had been giving clients since the release of the Supreme Court of Canada's decision in Wallace -- namely, that they must be careful in the manner they conduct their terminations of employment with particular attention to any actions that might increase the time it would take for the former employee to obtain alternative employment. The Court of Appeal's decision did not really change that advice since it continued to uphold punitive damages on top of Wallace damages. When clients contact us before they terminate the employment of someone, they respond well to the cautions we provide them regarding this issue. Employers, generally speaking, have a great interest in former employees obtaining alternative employment as soon as possible and in most circumstances it is not difficult to stay away from conduct that might attract a legitimate Wallace or punitive damages claim.

At their very narrowest, the decisions to date represent a major victory for those with CFS and the other, so-called "invisible illnesses" that are not easily verifiable by objective medical examination.

The broader implications of this case will be determined by the willingness of the Supreme Court of Canada to embrace significant damage awards as a deterrent to workplace harassment, discrimination and failure to accommodate.

Mr. Jeffries' prediction as to the outcome is cautious:

If I had to guess, I'd say that the decision of the Court of Appeal will be upheld, with the possibility that the punitive damages will be further reduced or eliminated entirely. I would hope that two principles are addressed by the Supreme Court ruling: proportionality and duplication. If punitive damages are ever appropriate, they should be proportional to the general damages. The bigger problem, however, is that the same set of facts and arguments are being used to make claims for extended notice, aggravated damages, punitive damages and mental distress claims. This can lead to awards such as the one you see in County of Lexington and Addington, in which in an admittedly unusual set of facts the Plaintiff was awarded damages for pay in lieu of notice, extended Wallace notice, damages for intentionally inflicting mental distress, punitive damages and damages for defamation.

My own view is that the Court is likely to rationalize the existing, competing statutory and theoretical approaches to addressing untenable workplace management practices, with a view to clarifying the rules for the benefit of employers and employees.

There is something deeply unsatisfying about Justice MacIsaac's back-door approach to compensation through punitive damages.

This is particularly so, given that the "independent actionable wrong" relied on at trial to support the landmark punitive damages award, discrimination, might not stand as an independent cause of action in the Province's civil courts.

Let us hope the Court provides clarity and coherence, if nothing else, as to the basis upon which damages may be awarded for human rights violations by employers in civil actions in the Province.

(And, for the record, I do not expect that the punitive damages awarded by the Court of Appeal will be further reduced. My view is the award will be maintained or increased in Ottawa).

The Supreme Court has reserved its decision.

- Garry J. Wise, Toronto


(This article is cross-posted at Bar-eX. See: Honda v. Keays: why it matters)

Additional reading:


UPDATE: June 27, 2008 - Supreme Court of Canada rules in favour of Honda

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Trial Lawyers' Association President: Ontario Motor Vehicle Insurance Law Unconstitutional

Richard Halpern, President of the Ontario Trial Lawyers’ Association says the “verbal threshold” provisions of section 267.5(5) of Ontario's Insurance Act contravene Canada's Charter of Rights and Freedoms.

Under the legislation, damages awards in personal injury claims arising from motor vehicle accidents are subject to a deductible of $30,000.00, unless the damages awarded exceed $100,000.00.

Commenting in Law Times on a recent Alberta Queens Bench decision, striking the Province's $4,000 damages cap on soft tissue injuries from motor vehicle accidents and holding that the cap violated s. 15(1) of the Charter, Halpern said:

Our positions is, if the Alberta cap is unconstitutional, then there are provisions in the Insurance Act in Ontario that are unconstitutional under the same reasoning...

It discriminates on the basis of age, disability . . . retired people, children, the unemployed, and the disabled,” says Halpern.“If there is a need to control claims costs for the industry — keep premiums affordable — this is not the way to do it...

The Charter challenge, having a retroactive affect as it does, means that the industry really has brought this upon [itself] by promoting changes while ignoring the rights of accident victims.

- Garry J. Wise, Toronto

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Monday, February 25, 2008

Mats Sundin To Stay a Leaf

As CBC reports, Leafs' Sundin won't waive no-trade clause.

What can I say?

I guess he likes us... he really likes us.

- Garry J. Wise, Toronto

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Oscar Night

- Garry J. Wise, Toronto

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Friday, February 22, 2008

County to Appeal New York Ruling that Recognized Canadian Same-Sex Marriage

Last weekend, we wrote about Martinez v. Monroe, a landmark decision of a New York State appellate court in Rochester that recognized a Canadian same-sex marriage as legally valid in the state.

Pursuant to the decision, Monroe Community College was required to provide spousal benefits to the same-sex spouse of one of its employees. The couple were married in Ontario.

Monroe County today announced its intention to appeal the decision:

In a case with national implications, Monroe County officials said this morning that they will appeal a state appellate court ruling in Rochester earlier this month that said New York must recognize same-sex marriages legally consecrated elsewhere.

The ruling is considered the first of its kind in the country.

“This is a clear case of misinterpretation of the law,” said Monroe County Executive Maggie Brooks in a statement. “We must appeal this decision in order to protect Monroe County taxpayers. We can not simply extend benefits to unmarried couples and we certainly can not ignore the definition of marriage that currently exists under state law.”

- Garry J. Wise, Toronto

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Mats Sundin's Moment of Truth

As even casual watchers of the NHL's pending trade deadline know, we are probably approaching Maple Leaf captain Mats Sundin's final weekend in Toronto.
At least one writer indicates a deal is already done - a deal, at least, that is subject to Mr. Sundin's approval. In an unusual ocurrance, Mr. Sundin did not meet with the media after the Leafs loss last night to Buffalo.

"PR Director Pat Park emerged to tell about 15 reporters that Sundin had "the flu" and had left. He did not make himself available for mid-day skate either.
Acting General-Manager Cliff Fletcher dropped what appeared to be further hints that something is already in the works:
"Mats has been such a big, important part of this franchise for so many years, you don't think we're going to drop something on [him] at five to three Tuesday afternoon?" Fletcher asked, rhetorically. "I don't do business that way."
Mr. Sundin is beneficiary of a no-movement provision in his Leaf contract that requires his agreement to any trade. I expect that he will bite the bullet, in spite of his stated fondness for Toronto, and agree to any trade-request Mr. Fletcher makes of him.
While much of the city appears to be clamouring for a deal that will ship the Leaf captain elsewhere, I anticipate a fair amount of remorse if and when such a deal is done.
Many do not recall the criticism Fletcher received when he acquired Mr. Sundin from the Quebec Nordiques in a 1994 trade that sent Leaf favoured son Wendell Clark to Quebec City. It took more than a few years (and two lackluster returns to Toronto by Mr. Clark), but Mr. Sundin ultimately won the city over.
Mr. Sundin is an elite player, and a class act. Unfortunately, neither he, nor this team he has led, has risen to achieve a championship.
In the quest for a Stanley Cup, the job has not been done.
With a trade, Mats Sundin may get there before the Leaf organization does. Perhaps, he can take some solace in that. If he remains in Toronto, he will never win the trophy.
After three consecutive years outside playoff contention, however, there is no doubt that the Leafs must make a move.
Thus, there will likely be a Sundin trade.
If so, there will inevitably be a morning after, filled with tributes and hand-wringing and second-guessing and blame.
None of it will amount to anything, unless and until this team's owners and management get as serious about winning as they are about balance sheets.
After 41 championship-free years, forgive me for having doubts.
Mr. Sundin has had a nice run in Toronto.
He deserves better. Let us hope he finds it elsewhere.
- Garry J. Wise, Toronto
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Cellucci to Canada: "Beware Democrats"

John McCain operative Paul Cellucci, former US Ambassador to Canada, issued a dire warning to Canadians, according to a Toronto Star article today:

OTTAWA–A former American ambassador is warning that Canadians' preference for Democratic presidential candidates flies in the face of the problems that their trade policies would present for Canada.

Paul Cellucci, who served as U.S. ambassador to Canada from 2001 to 2005, believes Republican candidate John McCain would better serve the interests of Canadians when it comes to unfettered trade and respecting NAFTA.

A recent Canadian Press Harris-Decima poll suggested a vast majority of Canadians would like to see Hillary Clinton or fellow Democrat Barack Obama in the White House.

He may have a point. Republican rule has been pretty good for the Canadian dollar...

Even if it hasn't been so good for America.

- Garry J. Wise, Toronto

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KFC - Kentucky's Official Picnic Food?

From Lowering the Bar:

Bill Would Make KFC the "Official Picnic Food of Kentucky:"

Be it enacted by the General Assembly of the Commonwealth of Kentucky:


Original Recipe Kentucky Fried Chicken is designated the official picnic food of Kentucky.

While the PETA folks are not amused, it is worth mentioning that in October 2006, KFC announced it would stop using trans fats, after a class action lawsuit was filed against it by a Washington, D.C.-based consumer health group to require the change:

The fast food chain KFC is being sued for the fat content in its fried chicken, which Center for Science in the Public Interest says contains "staggering amounts" of trans fat.

One three-piece Extra Crispy combo meal has 15 grams of trans fat, which is more trans fat than a person should have in one week, says the CSPI.

As a result of these very-laudable KFC recipe changes, most of the humour angles I might have used in response to the Kentucky picnic proclamation are no longer available.

- Garry J. Wise, Toronto

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Videoconferencing - The Next Generation

It's not every day that cites The Jetsons as an authority.

It does just that in Teleconferencing Gets Ready for Prime Time, an article published February 22 that heralds the arrival of high-definition videoconferencing as a legal technology solution:

Ever since cartoon character Jane Jetson chatted away on her videophone in 1962, teleconferencing has been on the wish list of just about everybody.

...But finally, Web-based conference technology may be ready for prime time -- thanks to high-definition video and fast, fat "pipes." Advances in large-sized screens, effective systems integration and stronger bandwidth are driving a nascent market for high-end systems where remote participants appear almost to be real, present-in-the-flesh attendees.

A state-of-the-art example is the Cisco Telepresence System 3000, pictured above, which utilizes:

"Three 65-inch plasma screens and a specially designed table that seats six participants on one side of the "virtual table." ...The life-size images and video clarity of the Cisco TelePresence System 3000 allow you to see every expression, while the CD-quality audio allows you to hear every word."

We have long daydreamed about videoconferencing and virtual courtrooms as a possible solution to long wait-times for litigants and counsel in our overcrowded courtrooms.

It appears that the technology is now developing that will ultimately allow this.

At $300,000 per room, the Cisco offering it is not inexpensive, but the cost is beginning to approach competitiveness with brick and mortar alternatives.

- Garry J. Wise, Toronto

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Tuesday, February 19, 2008

On "Friending" Your Boss and other Facebook Dilemmas in the Workplace

Associated Press writer Melissa Rayworth had a particularly coherent article Sunday on Facebook and the workplace, Should you 'friend' your boss on Facebook? Navigating the workplace perils.

Online social networking, originally the playground of pre-workforce Americans, is now commonplace in offices across the country. How do we navigate this new landscape, which builds business contacts and feeds friendships even as it creates a collision between the personal and the professional?

Ignoring these sites isn't an option. MySpace, LinkedIn, Friendster, Facebook, even niche sites like Digital Rodeo - the list continues to grow. More than half of Facebook's users are now outside college, and the company says people 25 and older are the fastest-growing group on its site.

Opting out could brand you as unenlightened, and signing up but refusing "friend" requests from co-workers or your boss is an uncomfortable solution. Rejection's ill will could even trump the fallout from embarrassing photos.

Absent the usual Facebook fear-mongering, Ms. Rayworth provides practical, common-sense suggestions for balancing participation in social networking with the requirements of the modern workplace:

  • Keep your public pages as career-focused as possible.
  • Choose your "friends" wisely, and ask that they treat your page with care.
  • Choose wisely about how much time to spend signed on.
  • When posting updates, think about the details.
Here's one more Facebook article, just for fun: President Bush Joins Facebook, Waits for Friend Requests
- Garry J. Wise, Toronto

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Canadian Family Law in 2007 - Year-End Reviews Online

Ontario's first Family Day must have been Family Law Day for DivorceMate's Mark Harris. The company's newsletter, released yesterday, provides links to two important articles of interest to family law lawyers and the Canadian public.

  • As well, Philip Epstein and Lene Madsen have delivered their annual year-end review of the state of Family Law in Canada - see: 2007 Family Law in Review

- Garry J. Wise, Toronto

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Monday, February 18, 2008

Golubchuk Update: Manitoba Life-Support Case to Proceed to Trial

Garry has previously written on the Samuel Golubchuk case, now pending in Manitoba, in which two Orthodox Jewish children have requested that a Winnipeg Court prevent a hospital from removing life support and thus ending their father's life.

After granting a temporary injunction on December 11, 2007, Justice Perry Schulman of the Manitoba Court of Queen's Bench ruled last week that the hospital treating Mr. Golubchuk must continue to provide him with full medical care until a trial can be conducted in the matter.

The Toronto Star reports:

A Winnipeg judge ruled yesterday that an 84-year-old Orthodox Jew will remain on life support until a dispute over whether a doctor can disconnect him without the family's permission can go to trial.

Samuel Golubchuk's adult children, Percy Golubchuk and Miriam Geller, looked elated after Manitoba Court of Queen's Bench Justice Perry Schulman ordered Grace Hospital to "provide full medical care" to their father until the end of a trial.

...In outlining his decision, Schulman pointed to conflicting doctors' opinions provided by lawyers on opposing sides.

Physicians at the hospital said Golubchuk has a complete loss of consciousness.

But Golubchuk's lawyer Neil Kravetsky produced a pair of statements from two American doctors, and one suggested that there is no evidence Golubchuk is brain dead.

One of the hospital's key arguments is that physicians have the sole right to make final decisions about treatment – a policy reinforced two weeks ago by Manitoba's College of Physicians and Surgeons after it concluded a long-awaited study of the issue.

The policy says family members must be consulted if a patient is unable to communicate but doctors can make the final decision so long as a family is given a four-day notice of when treatment will end.

Based on other end-of-life cases, though, Schulman noted that right has not been enshrined by the courts.

"It's not settled in law that doctors have the final say," he said.

"In my view, the resolution of these issues is wide open."
We will continue to follow this case and will keep you updated.

- Annie Noa Kenet, Toronto



Also see Volokh: Samuel Golubchuk euthanasia update


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Supreme Court of Canada: "Jerusalem, Israel" Not to Appear as Birthplace on Canadian Passport

When Mr. Eliyahu Veffer was advised that the Canadian Minister of Foreign Affairs refused to reflect the birthplace on his Canadian passport as “Jerusalem, Israel”, he commenced an Application for Judicial Review, claiming the refusal violated his rights as guaranteed by the Canadian Charter of Rights and Freedoms.

Recently, the Supreme Court of Canada dismissed Veffer’s application for judicial review citing both Canadian and United Nations policy on the matter.

The Supreme Court of Canada’s Bulletin of Proceedings reports:

Mr. Veffer is a Jewish Canadian citizen born in Jerusalem. He requested that the Minister of Foreign Affairs inscribe “Jerusalem, Israel” on his passport as his place of birth. Passport Canada, pursuant to policy, issued a Canadian passport indicating “Jerusalem” as his place of birth. Mr. Veffer’s former counsel wrote to the Minister and requested that the passport be amended to include Israel as Mr. Veffer’s country of birth. The Minister refused. Mr. Veffer sought judicial review on the basis that Passport Canada violated his Charter rights to (freedom of conscience or religion, identity and equality).

The application for judicial review was dismissed, as was an appeal, both on the grounds that Jerusalem is recognized by the United Nations as not being lawfully within the territory of any state. As a result, even though Israel had controlled the western portion of Jerusalem since the early 1950s and the eastern portion since 1967, and even though Canada maintains a diplomatic practice of acknowledging Israel’s de facto control of the western portion of Jerusalem (but not the eastern part), Canada does not recognize de jure that any part of Jerusalem is part of the territory of the state of Israel.

- Annie Noa Kenet, Toronto

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Sunday, February 17, 2008

Bits 'N Briefs

Time to catch up in brief on some interesting, recent developments:

  • An Alberta Court has struck the Province's $4,000 damages cap on soft tissue injuries from motor vehicle accidents. The caps was found to contrave s. 15(1) the Canadian Charter of Rights and Freedoms. The Court of Queen's Bench held that under the impugned legislation,"soft tissue injury victims are subjected to prejudice and are stereotyped on the basis of the type of injury from which they suffer." See Morrow v. Zhang

  • Calgary Muslim leader, Syed Soharwardy, has dropped his human rights complaint against Ezra Levant. Ezra, never one to take yes for an answer, says he'll now sue Syed for abuse of process. YouTube shares rise sharply, as Ezra's audience awaits the inevitable sequel...

  • At The Court, Professor Michael Lynk opines on Honda and Keays, an important employment law case that will be argued before the Supreme Court of Canada on February 20, 2008. The case will resolve key legal questions relating to workplace disability and accomodation and will address the quantum of punitive damages that may properly be awarded against a discriminatory employer. See: Keays v. Honda Canada: The Scope of the Disability Accommodation Duty in Canadian Employment Law

  • Slap Upside the Head (quickly becoming one of Canada's smartest and most entertaining blogs) reports, "Concerned Christians Canada, an Alberta-based Christian lobby group, has announced that they will launch a human rights complaint against the Alberta Tories. The complaint stems from the rejection of a Tory candidate’s nomination back in November. Alberta Premier Ed Stelmach failed to endorse Craig Chandler’s candidacy due to a history of anti-gay human rights violations. Concerned Christians Canada is furious with Chandler’s rejection, accusing the Stelmach government of anti-Christian discrimination."

  • A New York appeal court recognized a Canadian same-sex marriage as legally valid in the State, and required an employer to deliver spousal benefits to an employee's same-sex spouse after the couple married in Canada. The Court: "It is ADJUDGED and DECLARED that plaintiff’s marriage to Lisa Ann Golden in the Province of Ontario, Canada is entitled to recognition in New York State." See: Martinez v. Monroe

  • Anonymous online posting received a boost from a California appeal court (Techdirt)

  • And finally, our heartiest congratulations to U.K. barrister, Nick Freeman, on his success in trademarking his media tagline, "Mr. Loophole." Now, nobody else may use the phrase and Nick's title as Chelsea's uncontested Traffic Court champion will remain forever undisputed. (Times Online)

- Garry J. Wise, Toronto

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Commission: N.J. Civil Unions "Second Class Status" for Gay Couples

From the "Government commission tells us something we already know" department...

Raw Story:

A commission established to study same-sex civil unions in New Jersey has found in its first report that civil unions create a "second-class status" for gay couples, rather than giving them equality.

The report stops short of recommending that the state allow gay marriage. But it does find that gay couples in Massachusetts, the only state that now allows same-sex marriage, do not experience some of the legal complications that those in New Jersey do.

- Garry J. Wise, Toronto

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Saturday, February 16, 2008

Facebook: Terrrorist Tool?

According to a Scotland publication,

RADICAL British Jihadist groups are using Facebook and other social networking sites to recruit members and distribute extremist literature.

A private Facebook group called Ahlus Sunnah wal Jama'ah, the name of a successor organisation to the banned extremist group Al Muhajiroun, has been operating since early 2007.

The Facebook group has links posted to extremist literature by the jailed radical preachers Abu Hamza al-Misri and Abu Qutada calling for the waging of armed jihad against the British and American governments. There is also literature demanding the expulsion of any Muslim who votes in elections or "provides assistance" to the 'kuffar', or non-believer.

Five young British Muslims were freed last week after their conviction for downloading and sharing literature from extremist websites was quashed by the Appeal Court. The Lord Chief Justice said there was no proof of terrorist intent. The Home Office is still considering the landmark case, which lawyers for the men say has huge implications for counter-terrorism prosecutions.

- Garry J. Wise, Toronto

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Tainted Evidence: Conflicting Ontario Rulings

The Ontario Court of Appeal's decision in R. v. Harrison appears to narrow the circumstances under which evidence obtained by police without a search warrant may be excluded at criminal trials.

Welland Tribune's Tracey Tyler reported on the Harrison case, in which the defendant appealed his conviction on cocaine trafficking charges:

The Ontario Court of Appeal has approved the use of evidence obtained through flagrant police misconduct, saying any black eye caused to the justice system is outweighed by public interest in prosecuting a serious crime.

In a decision that even one of their fellow judges finds intolerable, a majority of the court upheld a trial judge's decision to admit evidence of 35 kilograms of cocaine found in Bradley Harrison's rented SUV - despite the judge's finding an Ontario Provincial Police officer had no legal grounds to stop the vehicle, seriously infringed the Toronto man's charter rights and misled a court while trying to justify his actions.

..."We believe that, without minimizing the seriousness of the police officer's conduct or in any way condoning it, it was open to the trial judge to find that reasonable members of the community could well conclude that the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars, and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission," [Associate Chief Justice Dennis O'Connor and Justice James MacPherson] said in their decision.

The appelate court's rationale in Harrison is evident from the LAW/NET case summary:

..there were circumstances which attenuated the seriousness of the breaches which supported his conclusion. For example, the officer`s conduct was not shown to be systemic in nature, or the result of operational policies or guidelines, or even an order from a senior officer. Further, the breaches did not have a particularly serious effect on Harrison`s Charter rights. He was detained in the roadside stop for only a short period of time. As the trial judge pointed out, the officer did not use any force or physical restraint. The officer did not search Harrison`s person, he only searched the car. Given that Harrison did not own the car, as it had been rented by the passenger, Harrison`s privacy interest in the car was low. As a result, the trial judge`s decision to admit the evidence was open to him. It was not unreasonable to do so and reflected no error in principle.

In a February 14, 2008 decision that goes in an entirely contrary direction, however, Ontario Superior Court Justice Maureen Forrestell nonetheless excluded evidence of cocaine found by four police officers who entered an accused's hotel room without a warrant, using a pass-key voluntarily provided by hotel management.

The Globe and Mail's Kirk Makin comments:

The decision also added to a growing philosophical chasm that is dividing Ontario judges. One faction - led by several Ontario Court of Appeal judges - has become increasingly loath to exclude tainted evidence, particularly in cases involving guns.

The other judicial faction continues to adhere to an approach pioneered in the 1980s by the Supreme Court of Canada, in which evidence gained through illegal police conduct has been frequently rejected for having brought "the administration of justice into disrepute."

- Garry J. Wise, Toronto

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