Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
ALTERNATIVE DISPUTE RESOLUTION
Holistic Legal Training: When should ADR training be introduced?
Joy Noonan*This article originally appeared in the OBA Alternative Dispute Resolution Section Newsletter, Volume 17, No. 2, March/Mars 2009.
During the course of my two decades working as a student, a lawyer and now as a mediator, I have experienced wide variations in how senior counsel and members of the bench define a “good lawyer”, and the moral attribution of “goodness” (as in being a good person) does not by any means necessarily belong to a “good lawyer”! In the legal world, my experience is that most often “good” is synonymous with “effective”.
What it means to be “effective” in 2009
So how do we as the legal profession define effective in 2009? Historically, it has involved a warrior model of conduct, but there is little doubt that this model has evolved over time. While most of us can readily accept that there will always be cases that do require judicial adjudication and rights that will need to be clearly defined and/or ranked for important societal reasons, the manner in which we manage conflict has generally evolved as the conflicts themselves have seemed to increase. We have moved into a phase of western society where parties to conflict are realizing that, on balance, the need for peace and closure may frequently outweigh the need for adjudicative justice. The emergence of and importance of Ombud offices within most of our national banks, within progressive employers like the LCBO, Canada Post Corporation and the National Capital Commission are only a few of the many examples of the more sophisticated approach clients are taking to conflict resolution in today’s legal/business world.
Statistics from 2004 indicate that, at that time, the rate of resolution of cases before trial had risen to 98.2%.1 If one accepts this fact – then surely the most sought after of lawyers will be the ones who can achieve the best settlements for their clients at the earliest stage of the process. Leaving aside the pressure placed upon counsel to docket and bill, and looking at this issue from a pure client service perspective, those who will rise will ultimately be those who can deliver this service most effectively. It flows naturally then, that we need to train students and lawyers with more depth in these areas of settlement negotiation early in their careers.
My proposition is that justice and peace are often not mutually exclusive and that we are as a profession lagging behind in our reaction to what the market is now demanding in terms of conflict resolution. Given the rate of settlement, we need to take settlement advocacy as seriously as trial advocacy. The “goal” is not to settle (with a 98.2% settlement rate, even the most incompetent lawyers can obviously settle cases) rather, the goal is to be able to negotiate a really good settlement, sooner in the process.
Ontario has had mandatory mediation in civil lawsuits for over a decade now, and still we are asking new lawyers to step into this forum and be effective with little or no understanding of the process and its attendant skill set. While there are a few Canadian law schools2that emphasize the importance of developing negotiation and ADR skills as part of the fundamentals in first year, for the most part, alternative dispute resolution courses are being offered as an option in the more senior years. The challenge then becomes, if you do not know what it really means, where it fits into your reality or why the skills are so important ... how can you be expected to know that you need ADR/negotiation courses? This statement holds true for CLE training post-law school as well.
Most Canadian law schools continue to focus training students into a purely adjudicative individual rights-based model of justice. In addition, with the emphasis on competition and individual achievement in school, we train students counter to what they need to learn most for their pending reality: the need to work with, and interact in a positive way with others. Lawyers spend their careers negotiating, and negotiation necessarily involves positive, cooperative human interaction.3 Nevertheless, the populist adversarial stereotype of lawyers continues to focus on less than cooperative behaviours: aggressive argument, positional bargaining, formalistic rituals and procedures, and the conduct of a single strategy (to win). A primary feature of the adjudicative approach to conflict resolution is the assumption that conflict either is, or can be readily transformed into, a matter of values and principles. As noted above, this rights-based model of our western justice system emphasizes an individualistic approach in which the rights of the individual will be protected against the oppressive assertion of another’s rights. The model assumes the source of conflict is an uncompromisable moral principle.4 For the most part, the image is of the adversarial lawyer; the glamorized image of the courtroom lawyer battling for individual rights. The negative stereotype presented by popular culture is open to a more positive interpretation by those who believe they understand the “special” role of lawyers. Hence, law students tend to see assertiveness rather than aggression, determination and tenacity rather than closed-mindedness, entrepreneurial values rather than money grabbing, and zealous advocacy for their client rather than unethical conduct.5
Law students are rapidly assimilated into a highly competitive and hierarchical culture. Assimilation increasingly includes adopting a competitive attitude and avoiding any cooperation, which might reduce ones chances of being scored over a peer by a professor. “Winning” means having the most, and the best, information, preferably of a kind that one’s peers do not possess. Information is further understood to be “right” or “wrong” and students are often encouraged to search for the magic “bullet” that will enable them to “solve” the problem.6 To be truly effective in the practice of law, they need more.
Expanding the philosophy behind the training
As a teacher, a mediator, and previously as the chair of a student committee, a principal for numerous students, and associate(s), mentor and head of a practice group in a private law firm, I have met many students and young lawyers enamoured with the idea of justice, but who found themselves made very uncomfortable with the notion of actual conflict. They had no idea how to manage it, having had no substantive training in how to negotiate and manage, for example, aggressive bargainers across the table. My proposition is that basic legal training be expanded to also involve training students to look at cases from not only a justice, rights-based model, but also from an interest based perspective – understanding the nature of conflict and considering the parties interests. How to deal with counsel who resemble rattlesnakes. Honour, respect, security, and other nonmaterial values do not always need to be reduced to money and yet, as trite as that statement sounds, that is exactly what lawyers are trained to do. In sum, students and new lawyers trained in a uni-dimensional philosophy tend to regard the notion of compromise and cooperation with a great deal of suspicion, even guilt. They come into ADR situations (such as mediations) with no good tools.
Imagine the shift in consciousness levels if, parallel to their introduction to courtroom skills and behaviour, students are also taught to begin thinking like negotiators. For example, students would be trained to consider carefully their client’s goals; to consider who they are trying to persuade, and of what; to consider what will appeal best to their various audiences (various members of the opposing party, their counsel, one’s own client, a mediator...). As part of learning to diagnose a situation, they would learn to consider whether they want to focus on the deal itself, or what will happen if the other side doesn’t make a deal. Moving forward from there, they can learn what are the kinds of settlements that typically flow from different types of cases and, of course, the all important power and use of language.
It IS messier; the answers are often less evident. However, I suspect that it would also be more meaningful; more realistic and would (one hopes) turn out into the system more thoughtful, more effective lawyers. Both sides of any given conflict are looking for the bullet that will support or sanction what they seek as a result. However, as any experienced lawyer will tell you, there is a vast area of grey between these bullets - and it is this grey area which new lawyers would be well served to learn and understand as the possible zone of agreement, without feeling they are somehow failing in their duty to the clients to fight for them.
If changing dispute resolution practices and procedures such as mediation encourage us to approach legal problems with a different mind-set of “problem-solving”, rather than purely adversarial self-interest, then negotiation ethics could emerge either as the middle ground between problem-solving mediation and adversarial trial ethics or as the model for ethics in dispute settlement.7
The challenge lies in introducing and developing a more thoughtful approach to conflict and legal conflict in particular, without taking away from the foundational adjudicative model which thrives on predictability; the magic bullet, the one answer. There is a certain “chaff” in that a more realistic and holistic approach does naturally make it more difficult to predict the outcome of any given conflict. That accepted, a more holistic analysis of conflict early on in the litigation process makes for better, more considered legal advice on the possibilities moving forward. It makes better, more effective, lawyers.
Layering on Legal Ethics
The notion behind a more holistic approach to legal training is that it will also better equip lawyers to navigate the often confusing waters of legal ethics. There will always be a fundamental tension between what our American colleagues refer to as their duty of “zealous representation” of their clients (our own rules of conduct say we have a duty to represent clients “resolutely”) while at the same time fulfilling ones duties as an officer of the court, which includes a duty to be candid with the court. In the United States, the duty to the client is generally seen as the lawyer’s primary duty, while in Britain, the duty to the court is preeminent. In our rules, the two duties are given equal prominence – which may make ethical choices in advocacy more difficult in our jurisdiction.8
Confusing/conflicting messages
James White (1980s) and Carrie Menkel-Meadow (2000s) both presented interesting analyses on the layers involved in ethical issues for lawyers in the context of considering the Model Rules of Professional Conduct from the American Bar Association. White begins with a premise that negotiation is non-public behaviour. As such, if one negotiator lies to another, only by happenstance will the other discover the lie.9 Menkel-Meadow points out that there is something fundamentally odd about a profession that is, at least in principle, dedicated to the discovery of truth, but equally committed to the notion that advocacy for the client allows a lawyer to tell less than the truth when negotiating outside of the courtroom setting.10
Teaching people to be moral, to be “good” is really an impossible assignment in this kind of an environment where, by the very nature of the profession’s goals, what is moral or ethical varies depending upon the context within which the issue is being raised. As a result, our rules of conduct are drafted at a very high level of generality. The complication in teaching, as in drafting rules, is referred to by White as the paradoxical nature of the negotiator’s responsibility:
On the one hand the negotiator must be fair and truthful; on the other he must mislead his opponent. Like the poker player, a negotiator hopes that his opponent will overestimate the value of his hand. Like the poker player, in a variety of ways he must facilitate his opponent’s inaccurate assessment. The critical difference between those who are successful negotiators and those who are not lies in this capacity both to mislead and not be misled.11
So, while there are limits on acceptable deceptive behaviour in negotiation, some deception is anticipated. How can one be “fair”, but also mislead? Therein lies the paradox. Your internal values may take you in one direction, but if by following that standard, a lawyer feels she is being misled, and thus failing to maximize results for her clients – is she faring better or worse by adhering strictly to a set of perceived ethical standards? Our Canadian Bar Association - Code of Professional Conduct, as well as the popular LSUC Practice Tips sections offered up as part of the various provincial reports provide some basic ad hoc guidance, but they cannot in any way remove the negotiator’s paradox. Knowing that it is a paradox, though, is half the battle.
Students and young lawyers are frequently embarrassed to seek out support, since these kinds of dilemmas are so frequent. They fear displaying a lack of knowledge, lack of confidence and their inexperience when they are confused and conflicted. They frequently follow the zealous advocate route (and there is certainly support for this proposition found in the code) contrary to their own internal value code, because they sincerely believe that is what is expected of them as lawyers.
Managing Client Expectations
The need for transformation, or at least growth, is not limited to those fighting or negotiating. Clients are also deeply entrenched in the individual rights based model. This is one very obvious challenge to expanding the current rights based approach towards something more holistic.
Clients, in part as a result of the rights based model we are accustomed to and in part as a result of the kind of adjudicative resolution they see in practice regularly on television, quickly seek to translate their injuries and damages into money values. Although litigants typically ask for relief in the form of damages, it tends to be a proxy for more basic needs or objectives – including the fundamental need to feel they have punished the other party(ies).12 Getting clients to buy into expanding the resources available to resolve conflict can be challenging. Lawyers compete heavily for client confidence and respect – and clients generally arrive in search of a warrior. Learning that what they need is actually a warrior/negotiator, takes some convincing. In this way, the traditional pure rights based model often serves the perceived interests and expectations of the clients well. Clients will regularly resist the possibility of compromise – or peace over justice – in initial meetings. Often a reality check is badly needed; however, this can be perceived by the client as the lawyer not wanting to fight for him/her, or not thinking they are tough enough to take on the case. Lawyers generally take this bait and quickly sign on for the fight, even where there is a nagging pull that this client might be better served through another process.
A further challenge faced by more holistic practitioners is that the rights based model is also functionally effective in achieving the kinds of results generally expected from a “victory” in the adversary system. There will be a winner - and clients want to win. Clients are quickly blinded by the hope of a large settlement, a victory, and reality checks are often not welcomed. The path of least resistance and also the path which is generally more lucrative for the lawyer is the traditional warrior rights based approach ... until such time as the costs have mounted, the client becomes afraid, quick victory has not happened (it rarely does) and reality is forced into the picture.13
There is not a simple pill, or style of training that can refocus clients early in the process. Often, even post-reality check, they wish to press forward to have their perceived superior right enforced. Effective lawyers have the skills to continually reassess the client’s appetite, ability and the impact of new facts or law on the likelihood of victory, without undermining the confidence of the client. To use classic Roger Fisher mediation language – what is the “best alternative to a negotiated settlement” - the BATNA?14 Is the risk of trial still the best alternative to a negotiated settlement? That answer may well change as the client progresses through the litigation process and good (effective) counsel will be very alert to it. Counselling clients at the outset about the need to weigh and constantly re-weigh the pros and cons of the litigation process as it moves forward, helps immeasurably in avoiding the lawyer later taking the “blame” or being accused of “selling out” when a clients initial expectations of a fast and large settlement need to be revised.
Lawyers are expected to be tough, to be zealous advocates for their clients. They are expected to be competitive and winners; while at the same time adhering to all ethical codes and rules in reaching that winning result. The concepts of “fighting fairly” and “ethically” are often confused with morality and are ill-defined. Now, we expect lawyers to also understand how to behave, and how to appropriately counsel clients through mandatory (or voluntary) ADR processes and criticize them when they withhold information, block the mediator from having any direct access to their clients, ‘fish” for information that will give them more power in the traditional adjudicative forum, or when they take highly positional stances in openings on behalf of their clients. Asking lawyers to depart from a deeply ingrained, rational, and predictable (insofar as cases before, on the points, may have addressed the issues) approach to the resolution of conflict can be very difficult. We share this responsibility for the legal profession; and for the public interest as well. Law Schools can play only one part; mentoring and constant streaming of the positive attributes of those who can negotiate well and achieve good settlements takes years. That said, it all starts with a solid foundation.
I did learn without any foundation from my schooling or early mentoring; but only after years of loathing the concept of mandatory mediation when it was first introduced in Ontario, and having had not the slightest idea how to work within that forum. I like to think that I eventually figured it out along with many of my former law partners, but I have no doubt that had I been fortunate enough to have received even a small fraction of the ADR training I now have and employ daily – there would have been fewer anxious nights preparing for mediations and clients could have been better served, faster. To paraphrase the philosophy of legal scholar Carrie Menkel-Meadow, we need not take the world as we find it, but should, instead, consider what might be more optimal.15
* Joy Noonan is a principle of APTUS, a firm that provides conflict resolution services. Ms. Noonan can be reached at (613) 258-8999.
1 Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver: UBC Press, 2008) at 7.
2 University of Ottawa Law and University of Calgary Law do include ADR training in the first year of course work.
3 Carrie Menkel-Meadow, “Ethics, Morality and Professional Responsibility in Negotiation” in Phyllis Bernard and Bryant Garth, eds., Dispute Resolution Ethics: A Comprehensive Guide (American Bar Association, Section of Dispute Resolution) Ch. VIII, 119 at 199-120.
4 Julie Macfarlane et. al, eds., Dispute Resolution Readings and Case Studies, 2nd ed. (Emond Montgomery Publications Limited, Toronto Canada, 2003) at 68-69.
5 Ibid., footnote 1 at 27.
6 J. Macfarlane, “The New Advocacy: Implications for Legal Education and Teaching Practice” in R. Burridge, K. Hinett, A. Paliwala, and T. Varnava, eds., Effective Learning and Teaching in Law (London: Kogan Page UK, 2002), at 173-75.
7 Ibid., footnote 3 at 122.
8 Gavin Mackenzie, The ethics of advocacy, The Advocates’ Society Journal (Autumn 2008) at 26.
9 James J. White, “Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation” in American Bar Foundation Research Journal, No. 4 , 1980, at 926.
10 Ibid., footnote 3 at 129.
11 Ibid., footnote 10 at 927 – 928.
12 C. Menkel-Meadow, “Toward another view of Legal Negotiation: The Structure of Problem Solving” (1984), 31 UCLA Law Review 754, at 794-817.
13 See also discussion on this point in Julie Macfarlane et. al, eds., Dispute Resolution Readings and Case Studies, 2nd ed. (Emond Montgomery Publications Limited, Toronto Canada, 2003) at 78.
14 Roger Fisher and William Ury, Getting to Yes (2nd ed.) (New York: The Penguin Group 1991).
Report from the 7th Annual Charter Conference held Friday, September 26, 2008
Arghavan Gerami, Kathryn Culek and Tiffany LauThis article originally appeared in the OBA Constitutional, Civil Liberties and Human Rights Section Newsletter, Volume 12, No. 1, November/Novembre 2008.
Moderator: Cheryl L. Milne, Executive Director, Asper Centre for Constitutional Rights, University of Toronto, Faculty of Law
Conference Chair Debra McAllister (ARCH Disability Law Centre) was the first speaker of the morning plenary and reviewed the year's Supreme Court of Canada's Charter decisions. McAllister noted the small number of Supreme Court decisions that involved Charter issues (14 with two cases really dealing with private law issues). Themes arising from these decisions were access to justice, the resurgence of Charter reliance in the development of the common law, the use of the Charter in international law, and the role of the courts in the legislature. McAllister pointed to the Kapp decision as the most noteworthy case of the year. The significant element of this decision was the court's analysis of section 15(2) where the majority reverted back to the Andrews test. In her concluding remarks, McAllister referred to Justice Abella's remarks that Canada prides itself on tolerance of differences through our human rights codes and constitutional provisions, in that individuals can integrate into Canada with these differences intact. Because the Charter is uniquely Canadian, it is a worthy project that should garner continued attention and work.
Barbara E. Kincaid (Supreme Court of Canada) then reviewed upcoming cases and developments at the Supreme Court. There are 30 appeals set for 2008 and nine for 2009. In addition, there are 35 cases on reserve, nine of which deal with Charter issues. Kincaid pointed specifically to the Supreme Court of Canada website, where lawyers can access docket information and links to judgments and schedules. A new feature that will soon be introduced is the use of electronic factums and appeal books.
Robert Charney (Ministry of the Attorney General) summarized the 10 most notable Ontario decisions involving the Charter. These specifically involved sections 2 (Badesha), 7 (Chesky, Dyke), 11(g) and 12 (Dyke),as well as the issue of when damages can be awarded from Charter violations (De Jong; Sagharian; Association of Justices of the Peace of Ontario).
The final speaker, Mahmud Jamal (Osler, Hoskin & Harcourt LLP) reviewed the Supreme Court's non-Charter constitutional decisions. Jamal states that there have been new developments in the characterization of tax and regulatory charges where a more liberal approach has been taken to regulatory schemes, and the role of the Charter in the development of the common law, where the court has to consider all relevant Charter values. Jamal states that the most interesting cases were two 2007 decisions which reformed the approach to federalism (Canadian Western Bank; Lafarge), specifically the emphasis on cooperative federalism, a new order of analysis and a stricter impairment/adverse consequences test. In reviewing their application in the lower courts, Jamal found that the precedents set by these cases has not impacted the way lower courts are applying the federalism analysis, but interestingly, the courts had been citing cooperative federalism in their decisions.
MORNING BREAK OUT SESSIONS
(1) Criminal Law Update
Moderator: Debra M. McAllister
The first speaker was Associate Professor James Stribopoulos (Osgoode Hall Law School) who provided an overview of Charter developments in criminal law at the Supreme Court of Canada from the past year. Professor Stribopoulos examined the following decisions in his presentation: R. v. Singh (the right to silence), R. v. A.M. and R. v. Kang-Brown (drug sniffing dogs), R. v. D.B. (presumption of adult sentences and loss of protection of publication ban for youths over 14 charged with serious violent crimes) and R. v. Wittwer (statement subsequent to an earlier statement unconstitutionally obtained).
The next speaker was Michal Fairburn (Crown Law Office Criminal, Ministry of the Attorney General for Ontario). Ms. Fairburn’s presentation focused on decisions involving the frontiers of technology. In R. v. Giles, the British Columbia Supreme Court found that emails on a BlackBerry are already crystallized on the device and therefore, do not engage Part VI of the Criminal Code. In R. v. Kwok, the Ontario Superior Court of Justice held that people have an expectation of privacy with respect to customer name and address held by an Internet provider. In contrast, R. v. Ward found they did not. Finally, in R. v. Kwok, chat rooms were held to be privacy-protected communications. Future issues include the jurisdiction to follow technology such as cell phones out of the country.
Mark Ertel (Bayne, Sellar, Boxall – Ottawa), the third speaker on the panel, began by noting that it is a confusing time to be a defence lawyer. The Charter generally appears to be under attack and in particular, section 24(2) of the Charter is under siege. Mr. Ertel referred to two decisions in his presentation, both of which have been appealed to the Supreme Court of Canada: R. v. Grant and R. v. Shepherd. Following these decisions, lawyers are confused as to the test to be applied for excluding conscriptive evidence obtained in violation of the Charter. One of the practical implications is that individuals who comply with police will be penalized. According to Mr. Ertel, defence lawyers are awaiting clarification of s. 24(2) by the Supreme Court of Canada.
The final speaker on the panel was the Honourable Madam Justice Michelle Fuerst (Superior Court of Justice, York Regional Municipality, Central East Region – Newmarket). Justice Fuerst’s presentation focused on R. v. Grant and R. v. Harrison, two recent decisions of the Ontario Court of Appeal that may change the way that judges apply the s. 24(2) factors. As both decisions have been appealed to the Supreme Court of Canada, Justice Fuerst concluded by stating that hopefully the Supreme Court will take the opportunity to clarify what is to govern the way in which the Collins factors are assessed and balanced.
(2) Freedom of Religion and Speech
Moderator: Susan M. Ursel, Green & Chercover
The first speaker of this session was John T. Syrtash (Garfin Zeidenberg LLP). He discussed the Supreme Court’s decision in Bruker v. Marcobitz (2007 SCC 54), pointing out that there may now be a new cause of action for damages arising from an unlawful interference with another’s ability to practice his or her religion under section 2(a) of the Charter. In this case, the majority decided that Mr. Marcovitz’s agreement to give a get constituted a valid contractual obligation. Moreover, given that civil and property rights were at issue, and the obligation to provide a get was not found to be against public policy, the Court was able to intervene. However, Mr. Syrtash pointed out, it may be difficult to apply this remedy in Ontario because of section 56 (5) of Ontario’s Family Law Act. This section allows a judge the discretion to set aside any provision in a separation agreement or settlement, or set aside the entire separation agreement or settlement if the removal of religious barriers was a “consideration” in the making of the agreement. However, Mr. Syrtash noted, that if the evidence indicated there was no coercion or unwarranted “consideration” for the promise to consent to the removal of the religious barrier to remarriage, the Court might decide not to exercise its discretion and set aside the provision.
Next, Cheryl Milne (Asper Centre for Constitutional Rights) discussed the exercise of freedom of religion by or on behalf of children in the context of Multani v. Commissions Scolair Marguerite-Bourgeoys and A.C. et al. v. Director of Child and Family Services. The Multani decision Ms. Milne explained, touched on the importance of religious freedom in the context of public school systems and the Supreme Court ultimately found that “at 12 years of age, a young person can be found capable of having a religion, and therefore, a constitutional right to express it”. A.C. et al. raised the question of at what age a child can assert his or her own constitutional right to freedom of religion and make a decision about his or her life and health. In this case, a 14-year-old girl was forced to undergo a blood transfusion, contrary to her religious views as a Jehovah’s Witness. While the Manitoba Court of Appeal conceded that the child’s freedom of religion was infringed, it found that Manitoba’s Child and Family Services Act accorded with the principles of fundamental justice and also met the requirements of the Oakes test under section 1 of the Charter. The Supreme Court heard this case on May 20, 2008. In her discussion of this case, Ms. Milne pointed out the importance of looking at religious beliefs from the point of view of the developing child, and noted that the concept of freedom of religion takes on a more autonomous character when children reach the stage where they can assert their independence and personal authority.
The third speaker was Professor Beverley Baines (Queen’s University, Faculty of Law – Kingston) and her talk focused on religion and polygamy in Canada. She discussed the recognition of valid foreign polygamous marriages, Charter challenges to section 293 of the Criminal Code and Charter challenge to section 2 of the Marriage Act. Professor Baines stated, “it may be better to argue for decriminalization of Criminal Code’s section 293 and win the argument now”. She noted that such a Charter argument could be based on freedom of religion and explained why it would likely be successful. She warned that the constitutional consequences of failing to decriminalize is harm to women and the postponing of legalization.
Tony S.K. Wong (Blake, Cassels & Graydon LLP) was the last speaker of this session and he focused his discussion on the constitutionalization of libel law. In particular, he examined Cusson v. Quan in which the Ontario Court of Appeal recognized the defence of “public interest responsible journalism,” and WIC Radio v. Simpson in which the Supreme Court expanded the defence of fair comment. Mr. Wong pointed out that in the past year, the Charter has had a significant impact on the functions of the press; the courts have made a number of important findings in the area of defamation, access to information, protection of journalists’ sources and statutory bans on the publication of criminal proceedings.
(3) Litigation Practice in Charter Cases
Moderator: Robert E. Charney
M. Kate Stephenson (Human Rights Legal Support Centre) began with an overview of the appropriate forms of proceedings and forums in Charter litigation. The first consideration Stephenson discussed was the appropriate form for the case. While the Superior Court has inherent jurisdiction, one will often be required to use other forums due to statutes and case law, such as Divisional Court, Federal Court and Administrative tribunals, each of which Stephenson reviewed in turn. Stephenson's second consideration was the appropriate circumstances for proceeding with an action or an application. In general, a case will proceed through an action with an application available in specified circumstances under Rule 14.05(3) (cases where the relief claimed is for a remedy under the Charter or where it is unlikely that material facts will be in dispute). After an outline of the differences between an action and an application, Stephenson pointed out that practically speaking, applications are preferred over actions by the courts and parties due to time and cost considerations. However, an action would be chosen for cases involving damage issues requiring factual inquiries that could not be completed through an application, in tort claims of negligence or abuse of office or if a discovery needed to be completed.
Cara Faith Zwibel (Borden Ladner Gervais LLP) explored the use of administrative tribunals and judicial reviews in Charter litigation. She began by describing two key realities about administrative and constitutional law cases. First, that most cases will proceed through a tribunal rather than a courtroom. Second, administrative tribunals and adjudicators are often reluctant to deal with Charter issues. Zwibel then explored two fundamental issues with Charter litigation in administrative tribunals, namely the jurisdiction of tribunals to consider Charter issues and judicial review. Generally, tribunals do not need to be granted jurisdiction to hear Charter arguments, but there are some circumstances where this jurisdiction is explicitly removed. In cases where constitutional and administrative law issues are intertwined, different standards of review may be used, depending on the circumstances. However, Zwibel noted that constitutional rights raised in an administrative context should not be swept up in administrative procedures and raising the Charter issue at the tribunal level can establish a record for the higher courts so that they can have the expertise of the tribunal's decision. With regards to the second fundamental issue of judicial review, a tribunal will not be involved unless it is granted standing and the court often takes a pragmatic approach as the tribunal role's is to inform the court of the whole picture.
Gary W.D. McGee (Justice for Children and Youth) outlined trends in applications for leave to intervene in cases at the Supreme Court of Canada. After a historical overview of third party interventions in court cases, McGee noted that between 2005 and 2007, 83% of applications to intervene to the Supreme Court succeeded. McGee then outlined two instances where leave was denied. In Clayton, the African Canadian Legal Clinic was denied leave to intervene without reason, but it was likely because the clinic did not raise new or relevant issues. In B.C. Health Services, the number of interveners was limited to four, likely because there was little differentiation between the submissions of some of the intervening applicants. McGee noted that the Supreme Court has been unusually open to interveners.
Christopher D. Bredt (Borden Ladner Gervais LLP) discussed the importance of advocacy in Charter litigation. First, Bredt noted that courts are often reluctant to make large changes all at once and may be more willing to accept a remedy that is framed in small steps. He cited Levine as an example where the remedy was framed as a narrowing of the scope of a national collective bargaining agreement rather than striking it down. In addition, Bredt also discussed the importance of factums and written submissions and outlined the key factors to a good factum.
LUNCHEON PLENARY
Enforcing the Constitution: Access to Justice
Moderator: Debra M. McAllister
The first speaker on the panel “Enforcing the Constitution: Access to Justice” was David Zimmer (Parliamentary Assistant to the Attorney General of Ontario and Member of Provincial Parliament - Willowdale). Mr. Zimmer spoke about two recent initiatives launched by the Ministry of the Attorney General to improve access to justice. The first initiative, Justice Ontario, is a telephone and internet service that provides basic information on the legal system. To ensure that Justice Ontario addresses the most common questions with the proper information, the Ministry has set up an Access Partnership of experts in all areas of the justice system. Partners include the Ontario Bar Association and Pro Bono Law Ontario. The second initiative, Justice on Target, is a results-based program that aims to reduce the provincial average of days and court appearances required to complete a criminal case by 30% over the next four years.
The Honourable David Watt (Court of Appeal for Ontario) spoke next on the self-represented litigant in the civil justice system. He stated that the problem to the justice system is not the self-represented litigant, but rather the court procedures that are inaccessible, complex, and intimidating for individuals. According to Justice Watt, “access to justice suggests that the process be open, transparent, clearly defined, simple and accommodating.” The presence of self-represented litigants impacts on everyone, including judges, courtroom staff, court administrators, other litigants and witnesses. One modest step for improving access to justice for self-represented litigants concerns the language used. Instructions to jurors, for example, should be redrafted in plain, legally correct English. To conclude his presentation, Justice Watt stated that the increase in self-represented litigants should be used as a catalyst for reform.
The third speaker, Dr. Patricia Hughes (Executive Director of the Law Commission of Ontario) began by noting that access to justice is similar to the concept of human dignity in that both underlie a number of rights and the Charter as a whole. Dr. Hughes then set out three meanings of access to justice: (1) the preconditions necessary for accessing justice, for example physical access to the courthouse or the ability to understand the proceedings in one’s own language; (2) the capacity to use the legal system meaningfully; and (3) access to substantive justice. Cases involving the preconditions to access to justice have been dealt with easily by the courts. In contrast, Charter claims with respect to the meaningful use of the legal system and access to substantive justice have only been partially successful. The lesson, according to Dr. Hughes, is that constitutional litigation is not always the most effective way to expand access to justice. Law Commissions present an alternative. Although the Law Commission of Ontario has no authority to enforce its recommendations, it does have time to carry out nuanced, multi-disciplinary, and multi-faceted research.
The final speaker on the panel, Lynn Burns (Executive Director, Pro Bono Ontario) began by providing some background information on Pro Bono Law Ontario and its projects, such as Law Help Ontario. Ms. Burns noted that currently in Ontario, an individual who requires legal services has only two options – self-representation or full representation. This is in contrast to the provision of medical services, where a wide range of options exist. Instead of an all-or-nothing approach, Ms. Burns suggested that the need for legal services be viewed as a continuum. Limited scope (unbundled) representation would permit representation for individuals who can pay for some services, but cannot afford full representation.
AFTERNOON BREAK OUT SESSIONS
(4) National Security Update
Moderator: Joseph J. Arvay, Q.C., Arvay Finlay, Barristers – Vancouver, BC
The first speaker on the panel “National Security Update” was Assistant Professor Gus Van Harten (Osgoode Hall Law School) who began his presentation by noting that secret evidence is sometimes necessary in order to have a review of officials and an examination of the evidence. However, secrecy poses a challenge to accuracy and to fairness. Professor Van Harten specifically identified three weaknesses. First, limitations arise because of the absence of the individual. This was recognized by the Supreme Court of Canada in the first Charkaoui decision. Second, the courts are dependent on the executive to be fair and forthcoming with the evidence. Third, a dynamic can arise over time in closed proceedings which makes the judges lean towards the security perspective put forth by the executive.
Paul D. Copeland (Copeland, Duncan), the second speaker on the panel, began his discussion with some background information on how the special advocate regime came to be following the Charkaoui decision in February 2007. In particular, he noted the federal government’s delay in responding to the Charkaoui decision, although it had one year. Mr. Copeland then discussed one of the problematic aspects of the new regime. Section 85.4(2) of the Immigration and Refugee Protection Act does not permit the special advocate to communicate with another person about the proceeding unless authorized by the judge. This includes communication with counsel for the person detained. According to Mr. Copeland, the section raises a number of practical concerns, in addition to possible violations of section 2(b) and section 7 of the Charter.
The third speaker, Hadayt Nazami (Jackman & Associates), spoke on behalf of Barbara Jackman. He first discussed the ongoing difficulty of obtaining disclosure and the firm language in Charkaoui on the application of the Charter to non-citizens. Mr. Nazami also flagged conditions of release as a future issue, particularly in respect to privacy of the individual and monitoring methods. Mr. Nazami then spoke about the challenges counsel face in the context of lack of disclosure and the opportunity to cross-examine. The solicitor-client relationship is particularly affected as counsel may only see a summary of the facts and are unable to disclose any information to the client. Mr. Nazami concluded by stating that while there have been some interesting developments in the case law, at the same time, there have been some steps back.
The final speaker on the panel was Ziyaad E. Mia (Canadian Muslim Lawyers Association) who began his presentation by noting that not a lot has changed over the past three years. His presentation focused on how the national security regime has resulted in the erosion of the rule of law and of responsible government. There are three factors in play: partisan politics, fear, and secrecy. Partisan politics and the leveraging of fear lead to secrecy. Secrecy in turn leads to more fear. According to Mr. Mia, secrecy undermines the legitimacy of the law. The Muslim community has been significantly affected and eventually the negative effects will be felt by the general public. Mr. Mia suggests that a national security regime should be low-cost, minimize mistakes, and keep us safe – all within the framework of the rule of law.
(5) Discrimination and Equality Rights
Moderator: Mahmud Jamal
The first speaker of this seminar was Sarah T. Kraicer (Constitutional Law Branch, Ministry of Attorney General, Ontario). Ms. Kraicer discussed the Supreme Court of Canada’s decision in R. v. Kapp (2008 SCC 41), noting that this case signifies “an evolution not a revolution.” Ms. Kraicer explained that the Court revisited its analysis of section 15(1) and 15(2) in this decision, and affirmed its commitment to substantive over formal equality. Moreover, she pointed out, the Court recognized that its focus on the concept of “human dignity” in Law might have been too complex, necessitating a re-examination of the original expression of its equality analysis in the Andrews decision. She noted that the Court addressed the relationship between the guarantee of equality in section 15(1) of the Charter and section 15(2) of the Charter, which deals with ameliorative ‘affirmative action’ programs, concluding that where the government demonstrates the ‘affirmative action’ program in question has a remedial or ameliorative purpose, or targets a disadvantaged group (based on a prohibited ground of discrimination), section 15(2) will successfully bar a section 15(1) claim.
The second speaker of this session was Susan Ursel (Green & Chercover) and she discussed the topic of intersectionality and discrimination. She began by explaining the meaning of “intersectionality”, the tensions at play in the concept, and how these tensions are reflected in the development of the law. She mentioned that the grounds of discrimination might on the one hand be viewed as helpful, but explained why they can also be considered a hindrance. For example, focusing on the grounds of discrimination as opposed to the impact of distinctions on particular groups may take away from people’s actual experiences. Ms. Ursel then focused on intersectionality in the context of equality and human dignity, discussing a number of cases including Canada v. Mossop, Egan v. Canada, Law v. Canada, and R v. Kapp. She ended her presentation by considering some practical applications of intersectionality, and in particular the relevance of the concept in the formulation of a case, formulation of a remedy and the marshalling of evidence.
The third speaker of this session was Kate Stephenson, who delivered the speech written by Professor Denise Reaume. Professor Reaume’s speech introduced the Women’s Court of Canada as an “aspirational project”, which reconsiders and literally rewrites the Charter’s equality jurisprudence. Organized by academics, activists and litigators, the WCC develops alternative approaches to equality, based on the belief that there is a collective responsibility to shape our legal culture. Alternative judgment writing allows participation in the equality debate and creates a new forum to further the discussion of equality and grapple with all the complexities surrounding the concept. The project also functions as a teaching tool through its full and comprehensive analysis of Supreme Court decisions; it allows for a better understanding of what is at stake and what is possible. The WCC attempts to operate under the same institutional constraints as faced by the Courts and through this, has developed a deeper respect for judges.
The last speaker of this session was Raj Anand (WeirFoulds LLP) and his discussion focused on the role of human rights statutes in advancing equality. He noted that human rights statutes increase access to justice by providing an additional forum to hear human rights complaints and allowing the indirect enforcement of Charter equality values in the private realm. He discussed the unique relationship between section 15 of the Charter and human rights legislation, noting the importance of developing a consistent approach to the protection of equality across Canada. His talk touched on the topic of equality rights under the Human Rights Code and section 15 of the Charter, discrimination under Human Rights Codes and application of the “Law” test, and access to justice and forum for human rights complaints.
(6) Remedies Update
Moderator: Debra M. McAllister
Paul B. Vickery (Department of Justice Canada) reviewed retroactive remedies by discussing claims for Charter damages and unjust enrichment through class action cases. Vickery noted that the Supreme Court had given conceptual guidance to the interpretation of an "appropriate and just remedy" under section 24 of the Charter as one that encompassed flexibility and imagination while being fair to the defence, and sensitivity to its role as a judicial arbiter without usurping the role of other governmental branches. Citing Benner, Hislop and Kingstreet, Vickery then explored these guidelines and their intersections with retroactive and retrospective damages. After a review of current class action cases seeking retroactive and retrospective Charter damages, Vickery noted that the continuing trend in class actions is to include claims for Charter damages to vindicate Charter rights, but that the viability of these methods would depend on future cases.
Andrew K. Lokan (Paliare Roland Rosenberg Rothstein LLP) explored constitutional exemptions as an alternative remedy to section 52 Charter provision of striking down legislation. The debate around the constitutional exemptions is that they are problematic since it gives courts a way to use a smaller remedy when there is evidence that the law should be struck down. Using Ferguson as a case example, Lokan stated there are three issues with constitutional exemptions: the text of the Constitution does not support constitutional exemptions and, it undermines the rule of law as it states that bad law can remain in effect. Thus, what is left of constitutional exemptions is that it can be given to the litigant in the interim, has been applied in practice in the past (for example, section 35 hunting and fishing provision for Aboriginals) and that while it is still a live issue, there is still reluctance around its usage.
Carissima R. Mathen (University of New Brunswick) discussed the funding and costs of litigation in the context of access to justice. Mathen states that in a society with a Constitution, there needs to be methods to ensure access to justice, which she evaluates through public interest standing and funding of litigation. While the Charter appeared to be an opportunity to grant standing in more cases, the court did not expand the criteria used to determine standing. Mathen examined two cases where standing had been denied this year (Canadian Council for Refugees and the Canadian Bar Association) and one case where it appeared as though the court was taking a more generous approach to standing (Chaouilli). It remains to be seen whether the Chaouilli framework will be used in subsequent cases.In addition, the cancellation of the Court Challenges Program reflected an impoverished view of rights, enabling the State to enact laws with few opportunities to ensure that they are in line with individual rights. The ordering of interim costs by courts acknowledges their recognition that some cases should be litigated when the broader public interest is served (Okanagan), but the courts are not mandated to award interim damages and the scope of this discretion may not be expansive. Similarly, the court's holding that there is no Charter right to counsel (Christie, Imperial Tobacco) also limits access to justice. Mathen states that these cases demonstrate the use of the Charter as a sword against the state and a shield for the state against litigation. She adds that the failures in court challenges against laws that have an impact on those with the most need for public resources reflects a failure of judicial imagination, leaving the State less able to deal with social needs. With limitations on public interest standing and diminished funds, private litigation may become the only option.
CLOSING PLENARY
Interface between the Charter and International Human Rights
Moderator: Debra M. McAllister
The first speaker was Honourable Russell G. Juriansz and his topic was entitled, “International Law and Canadian Courts: A Work in Progress.” Justice Juriansz emphasized the increasing importance and relevance of international law, highlighted by the frequency which Canadian courts are referring to international law in their decisions. Justice Juriansz referred to a number of decisions, including Baker v. Canada (Minister of Citizenship and Immigration), Ahani v. Canada(Attorney General), Health Services & Support – Facilities Subsector Bargaining Assn. v. British Columbia, R. v. Hape, and Canada (Justice) v. Khadr. He pointed out that international law “may not simply be used to interpret and guide domestic law, but also to determine when domestic laws may be applied internationally.” This is why, he concluded, it is extremely important that “domestic courts develop a consistent approach for assessing and weight of international law.” However, he said, in order to develop a more sophisticated consideration of international law, the judiciary will also need the assistance of counsel.
The second speaker of this session was Maureen Webb (Co-Chair, Lawyers Rights Watch Canada) and her discussion focused on the pressure faced by the Supreme Court of Canada to master international law, especially given the greater concern of all governments with international terrorism and the advent of the law on terror in the post 911 world. She noted that the issues generated by this new political context are at odds with international law imperatives. As well, Ms. Webb discussed the application of international law in the context of the Charter and noted that thismust be considered and reconciled with the constitutional principles of self-government and separation of powers. She noted that this balancing becomes extremely difficult in the case of jus cogens norms, which are pre-emptory norms from which derogation is not permitted in international law. Should jus cogens norms be determinative of absolute minimum standards in international law? How should this tension between international law and Canadian constitutional law be resolved? She argued that jus cogens norms are a pre-condition to security for all societies. As such, the violation of jus cogens norms are contrary to the purpose and values embedded in our Charter and their violation can never be justified under section 1 of the Charter.
The third speaker was Brudie Bethell (Simcoe Chamers) and she discussed a number of important cases in the area of the Charter and international human rights, including R. v. Hape, and Canada (Justice) v. Khadr. She highlighted the Supreme Court’s finding in Hape that “comity ends where clear violations of international law begin …” and noted that in Khadr, the Supreme Court plugged in this exception. She noted that the Supreme Court in Khadr, ultimately found the comity principle was inapplicable because Canada participated in a process which violated its international obligations, and the Charter applied with respect to that process.
The last speaker of this session was Paul Champ (Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. – Ottawa) and he discussed the increasing significance of international law in Charter jurisprudence in the context of the appeal currently before the Federal Court of Canada in the case of Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada (Court File No.: A-149-08). He noted, the Supreme Court is increasingly signalling that international law is not merely helpful, but also required. However, the application of international law is often complex and quite challenging, as for example, in the case of extra-territorial application of the Charter. He concluded by highlighting that both courts and lawyers must be more sophisticated in their understanding, use and application of international law.
The practice of environmental litigation requires that counsel apply a diverse array of knowledge and skill to a particular case, beyond what is usual in other areas of practice.
Numerous features of environmental litigation make it extremely complex and sensitive to handle, particularly for those not experienced in the area of environmental law. While a litigation lawyer with no experience in environmental law can adequately handle environmental litigation in some circumstances, to do so is difficult, and those who attempt it face numerous potential landmines that may be beyond their usual expertise. Beyond doubt, in order to do environmental litigation at the highest level, it is important for a lawyer to have at least some exposure and experience in handling other aspects of environmental law.
Whereas a general litigation practice involves the application of a general set of specialized skills applicable to a broad range of subject matters, the practice of environmental law, like some other areas of legal practice, evolves around a particular area of law. Because environmental law has become rather all-encompassing, the practice of environmental law too has evolved to include a large variety of different skill sets.
For example, in addition to environmental litigation, environmental law in legal practice is involved in most business transactions, relates intricately to real estate law, has unique tax implications, touches many aspects of municipal planning practice and involves a wide range of regulatory requirements and administrative bodies. Permits and approvals of one sort or another are required for most businesses, and there are environmental laws of general application affecting the daily activities of all businesses. All levels of government involve themselves in environmental law, and there are important international aspects to the practice as well. On top of all that, environmental law involves the application of cutting edge technological and scientific knowledge, and it is the environmental lawyer’s task to understand this expert technical expertise enough to be able to translate it into understandable principles for legal application and adjudication where necessary.
In a business transaction, such as the purchase of contaminated land or a business that has any environmental issues, environmental lawyers will often be called upon to provide their advice and expertise. Where, for example an environmental issue prevents a transaction from moving forward and must be dealt with, the environmental lawyer is required to oversee the remediation process and make provision for it in agreements.
Lawyers acting for clients who generate disposable waste need to know the ins and outs of the approvals and permitting process, in both the manufacturing and transportation markets of the goods they produce, so that they are aware of what permits are required and how to get them.
Finally, environmental lawyers need to have at least some sensitivity to and adroitness in terms of personal and political relationships, often going beyond the strict legalities of a situation.
As might be expected as a result, environmental lawyers are a diverse group, and this is reflected in the membership of the Environmental Law Section of the Ontario Bar Association. There are over 350 members of the Environmental Law Section, each one of whom has a distinct set of experiences which has led him or her to participate. Membership includes those with a wide range of expertise, from certified specialists and those who practice in the area of environmental law as a substantial part of their practice to those with a practice primarily in other areas, such as real estate, business transactions, litigation or general practice, who come across environmental issues from time to time.
Like environmental law itself, the forms of environmental litigation are quite diverse. The term environmental litigation includes any kind of “on the record” advocacy in environmental matters. In Ontario, this can arise in the context of civil actions in superior, provincial or federal courts, appeals of provincial administrative orders or permits before the Environmental Review Tribunal, judicial review of decisions of such tribunals, the defence or prosecution of environmental offences in provincial or federal court, addressing environmental issues in the context of Ontario Municipal Board hearings, environmental assessment hearings and consultations regarding major projects, as well as direct input into governmental policy and decision making in proceedings under the Environmental Bill of Rights.
Environmental litigation requires an understanding of constitutional law in Canada, as well as the workings of all levels of government and the interplay between federal, provincial and municipal jurisdictions. In addition, it is increasingly international in scope, whether this involves dealing with cross border issues and choice of law and forum in that context, or the enforcement of international treaties through enabling regulations (such as the Import and Export of Hazardous Goods Regulation) or the Kyoto accord.
Environmental litigation also includes litigation of some of the largest, most significant issues of our time, such as greenhouse gas emissions, toxic substances and clashes between the interests of an urban industrial economy with an agricultural one. Highly sensitive dealings with regulators at various levels of government are a normal part of the landscape, a must in every case, whether in terms of avoiding, using or reacting to regulatory involvement.
Environmental litigation is all about the allocation of liability for environmental harms. It is a risk allocation which has not been left to the courts like many other areas of commercial litigation; rather, governments have been deeply involved and regulate the environment heavily. It is within that context that the allocation of liability through environmental litigation takes place. This requires a detailed knowledge and more importantly a detailed understanding of the regulatory regime which governs environmental law, and the complex set of liabilities that can arise for clients in an environmentally sensitive aspect of their business.
A failure to balance all of these considerations can be problematic, and this is especially the case in environmental litigation.
When the economy is booming, the contamination of a property can be seen as both an opportunity and a hindrance. It creates some hurdles that get in the way of business transactions and must be dealt with, but at the same time, purchasers interested in buying contaminated property often see the existence of contamination as an opportunity to purchase at a discount and also to make profitable investments in infrastructure beyond what might be obtained pursuing other opportunities.
In a recessionary economy, however, the questions of who is going to pay for the clean-up of contaminated land, water and air, and how much, become even more acute. During a recession such as we are experiencing now, money is tight and business people tend to be more risk adverse than usual. By consequence, more and more focus is placed on pursuing litigation against those who are or might be found responsible for clean-up costs.
As a result, these are busy times for environmental litigation, and there are numerous opportunities for environmental lawyers to use their broad range of experience and skills to come up with imaginative solutions for clients litigating environmental issues.
This article originally appeared in Voices, the OBA Feminist Legal Analysis Section Newsletter, Volume 14, No. 3, April/Avril 2008.
Mentoring is the single most effective means of helping one to be aware of one’s abilities and to become proactively engaged in career management. Mentorship, with leverage coaching, is a powerful tool for personal empowerment and personal development. In our intercultural global society, we need to move away from traditional norms, assumptions and values about mentoring. Integrating cultural dimension and diversity in mentoring, augments the Mentor’s potential to become a more effective and successful Mentor. Most likely, the experience for the Protégé is richer. Integrating a culturally diverse approach to mentoring helps to maximize ones fulfilment and contribute to systemic change. However, one’s effectiveness as a mentor is determinative on the commitment to the relationship.
Mentoring Circles1 is an innovative way of mentoring. In this model, the key medium is storytelling: members tell stories of real experiences. It is a powerful tool, which fosters teambuilding and leadership. Essentially, the benefits are many fold; more than one may get from one-to-one mentoring. It maximizes the time investment and number of Protégés one helps. In addition, Mentoring Circles provide individuals with personal and professional development. It is a veritable source of practical knowledge and continuous learning. This model might be especially useful for students (intercultural mentoring), new professionals and professional persons, especially women who take time out of their careers to raise a family. This model may facilitate the integration of cultural dimension and develop or foster community and systemic cultural competencies.
The following tips may enhance one’s mentoring experience:
Prepare yourself to become a Mentor. Develop and exercise a high level of emotional and social intelligence, e.g., strong inter and intrapersonal skills. For example, it is critical to be a self-actualizer,2 with pragmatic action-oriented goals. Engage continuously in learning.
Exercise absolute confidentiality. A Protégé must feel as secure with a Mentor as in a “solicitor-client” relationship. Do not use a Protégé’s news as fodder for discussion, unless to advance the positive interest of the Protégé. There are no longer six-degrees of separation.
Exercise humility always: be genuine; be sensitive, be flexible in tailoring the experiences to the Protégé’s needs or don’t do it; be friendly, yet not familiar.
Be committed fully: be prepared to invest time and effort in this relationship.
Ascertain compatibility (needs, goals, expectations, etc.) with the prospective Mentor or Protégé. I do not mean being the same race, colour or creed, even though that may make a difference.
Encourage your Protégés to become mentors and you must actively have mentors. The goal is building mentorship several persons deep.
Type of contact and frequency of contact should be set at the onset. Once set, it should be kept.
Do not be the quick fixer, have the best solution or the right answer. Help your Protégé develop critical and independent thought and problem-solving skills. Give advice when appropriate, and be specific.
Actively help your Protégé set practical goals and objectives. Always show your Protégé that you have confidence in her or his ability to grow continually and to become a great achiever.
Be a mentor who thinks outside the box and is willing to connect the dots.
Mentor across cultures; it is a socio-economic imperative.
Become knowledgeable about cross-cultural concepts to enable you to integrate cultural perspectives in mentoring. If you are able to analyse and evaluate situations from an intercultural perspective, in the words of Peter Adler, you will become a person whose “essential identity is inclusive of life patters different from his own and who has psychologically and socially come to grips with a multiplicity of realities”. (Beyond Cultural Identity)
Try Mentoring Circles instead of individual mentoring to maximize on the time investment and number of Protégés you help. This model may be great for students and new professionals. It is fun, but it is not for everyone. Mentoring Circles may facilitate the integration of cultural dimension and diversity and can be the nucleus to develop community and systemic cultural competency. This model helps to develop and enhance leadership skills and foster dynamics of team building.
Become knowledgeable in cultural orientations and apply that knowledge when appropriate. Become culturally competent.
Finally, “pay it forward.” Be as generous to your Protégé as your Mentor is to you.
I list several writings, which I find helpful and inspiriting as a mentor. While these books do not speak specifically about mentoring, they are great sources of practical advice that help shape and sustain one’s ethos of life. By shaping and managing your emotional state and finding continuous sources of inspiration, you are ready to help someone manage her or his life. The EQ Difference: A Powerful Plan for Putting Emotional Intelligence to Work by Adele B. Lynn; Coaching Across Cultures by Philippe Rosinski; The EQ Edge, Emotional Intelligence and Your Success by Steven J. Stein, Ph.D., and Howard E. Book; Emotional Intelligence by Daniel Goleman; Overcoming Life’s Disappointments, Rabbi Harold Kushner; When Bad Things Happen to Good People, Rabbi Harold Kushner and The Lord Is My Shepherd by Rabbi Harold Kushner.
* Patricia DeGuire, LL.M., F.C.I.P. The thoughts expressed in this article are the writer’s.
1 The Mentoring Company™ pioneered a learning tool called Mentoring Circles and has built a diverse clientele ranging from academic institutions to international corporations. The Mentoring Company™ was created from a vision of its founder and Chairman of the Board, Amy Burgess.
2 This is an eclectic concept from Maslow’s quintessential “hierarchy of needs”. A mentor must have a keen sense of purpose or a life map, and be satisfied with her or his achievements in all aspects of life. “Satisfied” must not be confused with successful.
Supreme Court of Canada Allows CNR's Appeal against Insurers under Builder's All Risk Policy in Tunnel Boring Machine Case1
Peter Braund*
This article originally appeared in the OBA Insurance Law Section Newsletter, Volume 19, No. 3, February/Février 2009.
Introduction
In a 4-3 decision, the Supreme Court of Canada recently allowed CNR’s appeal from a decision of the Ontario Court of Appeal, restoring the trial judgment in CNR’s favour which, including interest and costs, totalled approximately $40,000,000.00.
CNR’s claim was against subscribing insurers under a builder’s risk policy arising out of damage caused to the then world’s largest soft ground earth pressure tunnel boring machine (“TBM”) during the course of construction of a railway tunnel under the St. Clair River in 1993.
Of particular interest to property insurers and product liability counsel was the Court’s interpretation of the faulty design exclusion in the builder’s risk policy and, its application of the “state of the art” standard.
Background Facts
CNR was retained to construct a railway tunnel under the St. Clair River between Sarnia, Ontario and Port Huron, Michigan. The TBM was a massive piece of machinery – cylindrically shaped – with a body length of 83 meters and a cutting head diameter of 9.5 meters.
Lovat Tunnel Equipment Inc. (“Lovat”) was an experienced tunnel equipment manufacturer selected by CNR to construct the TBM. Lovat had designed and built 124 TBMs prior to the TBM in issue which was bigger by about 25% than the biggest TBM Lovat had constructed in the past.
In turn, Lovat retained Wardrop Engineering Inc. (“Wardrop”) to conduct an analysis of the extent to which the steel components would deflect under the anticipated operating pressures. Because of the complexity of the job and the size of the customized TBM, a technical committee was set up, composed of expert tunnelling contractors and consultants formed to advise on the conceptual design parameters. The technical committee’s work was guided by a steering committee which provided general guidance. There was also a technical review committee which monitored, reviewed and advised CNR on the project as a whole.
The design of the TBM included a main bearing which allowed the cutting head to rotate. To shield the main bearing from damage from soil and other excavated material, the TBM employed an extensive sealing system involving 26 seals, the sole purpose of which was to prevent contaminants from getting into the main bearing and to stop the pressurized lubricants from leaking out.
Tunnel boring commenced in November, 1993. Approximately two months later, after digging about 14% of the route, but before reaching the St. Clair River, the engineers discovered that dirt had entered the main bearing chamber. Operations were halted and a vertical shaft was dug from the surface down to the level of the TBM. The TBM was repaired. Modifications were made to the TBM including changing the configuration of the seals and adding a bronze “wear ring” to the cutting head.
The project was delayed 229 days.
Policy Wordings
CNR paid a premium of $890,000.00 for a Builder’s Risk Policy which insured it against “All Risks of direct physical loss or damage … to … all real and personal property of every kind and quality including but not limited to the (TBM)”, but excluding both “the cost of making good . . . faulty or improper design” and “inherent vice”.
Lower Court Decisions
Justice Ground of the Ontario Superior Court of Justice2 found in favour of CNR and concluded that “the law of Ontario is that the standard to be applied to determine whether a design was faulty or improper is that insured property must be designed so that it accommodates all foreseeable risks, even though such risks may be unlikely and remote”.3
Justice Ground said that the detailed design, engineering and structural integrity of the TBM were the sole responsibility of Lovat and that with respect to the deflection of components of the TBM, all detailed analyses and calculations were done by Wardrop on behalf of Lovat or by Lovat using the results of Wardrop’s finite element analysis.
Justice Ground noted that there was no evidence that the 124 TBMs previously built by Lovat had experienced similar failure, although many had used similar sealing systems.
The Trial Judge disagreed with the insurers that because the machine failed in November 1993 and then had been modified successfully to preclude another such occurrence, the risk ought to have been foreseen and the problem solved at the outset.
Justice Ground found that:
“When all of the evidence is consistent that none of the experts or other persons involved, who had substantial experience in the design and manufacture of TBMs and with tunnelling projects, expressed no concern with respect to differential deflection adversely affecting the sealing system and when the design of the TBM and the analyses of the various components did not indicate the possibility of the failure which occurred, it seems to me to be making an unjustified logical leap to conclude that because a failure did occur and was remedied, it should have been foreseen initially.”4
The Ontario Court of Appeal5 allowed the insurer’s appeal (Rosenberg and Cronk JJ.A. for the majority; Lang, J.A. in dissent) finding that the design of the TBM had been faulty within the meaning of the exclusion holding that the TBM must be designed to withstand all foreseeable risks and that included, with the benefit of hindsight, to be shown to have succeeded in withstanding all foreseeable risks.
Justice Lang in dissent said that the majority’s test in her view was objectionable because:
“If a design is required to succeed in accommodating all foreseeable risks, as my colleagues say it must, then the design is required to meet a standard of perfection with respect to those risks.”6
Issue Before the Supreme Court of Canada
The key question that divided the Ontario Court of Appeal majority and the Trial Judge was how to define the scope of the “faulty or improper design” exclusion within the context of an “all risks” insurance policy which must be read as a whole.7
Decision of Supreme Court of Canada: Rejection of The Queensland Principle and Adoption of The Foundation Standard
Binnie, J. for the Supreme Court of Canada majority, rejected the application of “The Queensland Principle” and applied “The Foundation Standard”.
The Queensland Principle was enunciated by the Australian High Court in the case of Queensland Government Railways v. Manufacturers’ Mutual Insurance Limited.8 In that case, three concrete piers of a railway bridge under construction were swept away by a flood. The insurance policy excluded “loss or damage arising from faulty design”. An arbitrator found the cause of the collapse to be the inability of the piers to withstand the transverse forces of the river current to which they became subject. He also found that it was reasonable for the designing engineer to rely on the fact that a previous bridge in that location had stood for 50 years and, that the design was in accordance with the then state of the art. In a 5-0 decision, the Australian High Court reversed the arbitrator’s award and upheld the faulty design exclusion. The Court in Queensland said:
“To design something that will not work simply because at the time of its designing insufficient is known about the problems involved and their solution to achieve a successful outcome is a common enough instance of faulty design.”9
Binnie, J. noted the following comments regarding The Queensland Principle contained in Professor Craig Brown’s text, Insurance Law in Canada:10
“In the Queensland case, the Court also noted that “faulty” can mean either “caused by the inadequate conduct of someone” or “defective, no matter whether the defect is caused by someone’s inadequate conduct or not”. The Court applied the latter definition. It has therefore been argued in other cases that where an insurable loss results, a prima facie inference is raised that the faulty workmanship or design exclusion applies. In other words, it is argued that if the design failed, it must be faulty. This would, however, effectively reverse the onus of proving that the exclusion applies, in the absence of any policy wording to that effect. Further, it would impose absolute liability on the contractor or designer and would significantly negate the coverage provided. There cannot be absolute liability because the exclusion is comparative. This requires a comparison to a standard and a finding that the design was below that standard.”
Binnie, J succinctly concluded:
“Respectfully, I do not agree with Queensland that a design can be said to be “faulty” if it conforms to the state of the art, as was found by the Trial Judge to be the case here.”11
In Foundation Co. of Canada Ltd. v. American Home Assurance Co.,12 the insurer invoked the “faulty design” exclusion when a cofferdam (a water tight enclosure from which water is pumped to expose a river bed) collapsed in the course of constructing piers for a bridge. The cause of the collapse was a localized “blow-in”, or the sudden collapse in the underlying riverbed, caused by the unexpected mixing of gases with soils containing a high proportion of swelling clays. The collapse could have been avoided by driving the pilings deeper, but the need for this extra measure was not foreseen because the combined presence of gas and the particular soil conditions was unpredictable and undiscovered by pre-construction testing of the subsoil.
Justice Wilson, the Trial Judge, concluded that it was unlikely that further tests, such as a further bore hole at each cofferdam would have identified the potential problem. She declined to apply Queensland and emphasised the need for the foreseeability of the precise risks and the need to measure the design against a known standard or comparator.
Her decision was affirmed by the Ontario Court of Appeal which said the cause of the collapse was known and the insurer had failed to meet its onus to show a faulty design.13
In supporting the analyses and judgment of the Trial Judge and Lang, J.A.’s dissent in the Ontario Court of Appeal, Binnie, J. said as follows:
“The Trial Judge found that the investigation and accommodation of the risk had been conducted in accordance with the state of the art. He accepted the view of the CNR expert that additional computer modelling and analysis would not have disclosed the risk. He noted that “neither of the experts can explain why all of the seals failed although all of the seals were not damaged” … Nevertheless the majority of the Court of Appeal stated that “the foreseeability standard mandates that the relevant design … “withstand” all foreseeable risks” … In my view, however, failure “to withstand” does not discharge the onus of establishing a “faulty or improper design”. The CNR purchased the “all risks” policy in recognition of the fact that, despite all efforts to achieve a successful design in accordance with the state of the art in a new and challenging situation, there was an inevitable element of risk with an innovative design that it wished to insure against. It thus purchased “all risks” insurance. I accept the view of the trial judge and Lang, J.A., dissenting, that the loss fell within the coverage and was not excluded in the circumstances of this case”.14
The Supreme Court of Canada majority disagreed with the Ontario Court of Appeal, noting the conclusion of CNR’s expert, Dr. Hampson, who wrote:
“It is not realistic to suggest that all potential problems can and always should be identified nor that the issues spotlighted by hindsight should always have been picked out. Dr. Becker (the insurers’ expert) offers no evidence that the engineering approach from Lovat was not rigorous apart from the somewhat tautological contention but because a failure occurred they should have avoided it … There are undoubtedly failures due to incompetence, ignorance, complacency, blind faith, mistakes and incorrect information. But there are also failures of components that could not have been foreseen and would not be focused on from the basis of information that was available at the time – it is my contention that the St. Clair TBM is in this category. The value of hindsight after a problem cannot be over emphasised … but this is far removed from foreseeability in the real world.”15
Binnie J. then said, in interpreting these passages quoted from Dr. Hampson’s evidence:
“I interpret these passages as saying that at any given time risks may be foreseeable but that in addressing those risks in an innovative project there is inevitably a gap between the then current state of the engineering art and omniscience, i.e., the state of perfect knowledge and technique. This gap conceals risks within risks that are not foreseeable on “the basis of information that was available at the time … in the real world.” As Lang, J.A. pointed out, quite reasonably I believe, a design is not “faulty or improper” simply because it falls short of perfection in relation to unforeseeable risks.”16
Conclusion
The Supreme Court of Canada therefore rejected the prima facie or perfection standard and, adopted the “state of the art” standard. The majority mused that if the policy wording had been different here, there might have been a different result:
“I do not believe that where, as here, the risk is broadly defined (“metal deflects under stress”), and the design addresses that risk with state of the art diligence and expertise (as here), the insurers are entitled to the exclusion just because, with the benefit of hindsight, it turns out that “engineering knowledge and practice lacked a proper appreciation” (to quote Queensland again) of the design problem. A narrower interpretation of the exclusion, it seems to me, best accords with intentions of the parties based on the plain meaning of the words used, namely “faulty or improper”. If the insurers wished to negotiate an exclusion of costs associated with simple “design failure” or “design failure in conditions of foreseeable risk”, it was open to them to have tried to do so but that is not the wording of the policy and this exclusion clause should not, in my opinion, be given that effect.”17
This decision should be carefully reviewed in relation to any claim under a builders all risk policy where a faulty design exclusion is being relied upon by the insurer and where the insured is alleging that the design complied with the then state of the art.
* Peter Braund is a partner at Borden Ladner Gervais LLP.
1Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada, 2008 SCC 66 (S.C.C.).
Public Inquiries: The Quest for the Public to Know and a Matter of Public Record
Abi Lewis*
This article originally appeared in the OBA Public Sector Lawyers' Section Newsletter, Volume 7, No. 1, December/Décembre 2008.
At the heart of a democracy is the need for the public to know. Governments at all levels are motivated by reasons of accountability, transparency and responsibility to set up commissions of inquiry to probe further or set the facts straight in matters that have assumed a significant public interest or generated lively debates. Examples: the Maher Arar inquiry chaired by Justice Dennis O’ Connor that released its report on September 18, 2006 (federal government), the Ipperwash inquiry chaired by Justice Sidney B. Linden that released its report on May 31, 2007 (Ontario government) and the three-member school community safety advisory panel chaired by Julian Falconer that released its report in January 2008 (Toronto District School Board – municipal government).
Although the Public Inquiries Act is the principal legislation for government authority, it is by no means the only statutory vehicle available to ministries and government agencies for the authority to establish commissions of inquiry, review panels, fact-finding panels, etc. Thus, inquiries “come in different sizes and mix”, depending on the policy issues or matters of public interest that the government aims to further beam the searchlight of public scrutiny on.
The Public Inquiries Act governs the establishment and conduct of public inquiries in Ontario. Section 2 of the Act, which provides the government with the legal and moral authority to set up commissions of inquiry, states:
“Whenever the Lieutenant Governor in Council considers it expedient to cause inquiry to be made concerning any matter connected with or affecting the good government of Ontario or the conduct of any part of the public business thereof or of the administration of justice therein or that the Lieutenant Governor in Council declares to be a matter of public concern and the inquiry is not regulated by any special law, the Lieutenant Governor in Council may, by commission, appoint one or more persons to conduct the inquiry.”
The Act consists of three parts. Part I, which stipulates open inquiry hearings with exceptions, provides for rights of parties appearing before the inquiry, what to do if a commission’s authority is called into question and the expectation that inquiry reports be made available to the public. Part II deals more with process issues related to the conduct of public inquiries such as the power to summon witnesses, protection of witnesses and their right to object to answer a question at the inquiry, treatment of evidence and the issue of privilege and the authority to state a case for contempt for failure to attend an inquiry hearing.
Part III provides additional powers for a commission of inquiry such as the authority to obtain from the court a search warrant or a warrant for apprehension of a witness and the removal of documents from the premises during an investigation. However, Part III does not apply automatically to an inquiry unless the government specifically has indicated so at the time of establishing the commission of inquiry.
Since inquiries are meant to put a closure to a matter of public interest in the minds of members of the society at large, whether they were created pursuant to the Public Inquiries Act or any other legislation, their reports in a way are serving the lofty goal of being a matter of public record in aid of the public quest to know that justice is done.
In the last two years, commissions of inquiry or review panels have issued reports that focus or touch on justice issues. Here are a few:
Review of the Roots of Youth Violence (McMurtry and Curling Report)
On June 11, 2007, Premier Dalton McGuinty appointed former Ontario Chief Justice Roy McMurtry and former Speaker of the Legislature Alvin Curling as Co-Chairs to conduct a review of the Roots of Youth Violence.
Their mandate was to:
build on existing investments in Ontario’s public education system, in creating opportunities for young people, in making schools and communities safer and on the important work of previous reviews and key partners including the City of Toronto and the United Way;
consider existing provincial investments and programs related to child development, youth violence and youth at risk, that are intended to create educational and employment opportunities for young people;
assess approaches used in other jurisdictions to evaluate their potential to be applied successfully in Ontario’s context; and
identify further opportunities for prevention of violence and the rehabilitation of youth.
On November 14, 2008, the Co-Chairs presented the Roots of Youth Violence Report to the Premier. The Report, which urges the government to focus its resources on the province’s most disadvantaged communities, details how poverty, racism, the lack of decent housing, culturally insensitive education systems and limited job prospects combine to create hopelessness, alienation and low self-esteem among youth that all too often explodes into violence.
To deal with the roots of youth violence, the Report recommends measures to improve social conditions, address poverty and racism, generate employment opportunities, establish a comprehensive youth policy framework, and better coordinate the efforts of different government ministries and agencies.
It also recommends building strong communities through a “place-based” approach similar to the United Kingdom’s, and the use of an Index of Relative Disadvantage to determine objectively which communities are most in need of extra assistance. Within those communities, whose boundaries would be confirmed in consultation with municipalities, the province would work with other partners to establish community hubs, create neighbourhood partnerships and increase the community’s ability to work at solving its problems.
To ensure an effective, coordinated and efficient approach to the many issues affecting violence involving youth, the Co-Chairs recommend that the government create a new Cabinet Committee on Social Inclusion and Anti-Racism (or an equivalent central body), set up a Cabinet Office secretariat and establish a Premier’s advisory council. According to them, without an effective governance structure and mechanisms to cut across the many silos that exist in the provincial government, their experience tells them that no meaningful progress can be made.
The Co-Chairs made 30 major recommendations in their Report. Some of the recommendations that affect the justice sector include:
appointing a Youth Justice Advisory Board to better coordinate the work of the three ministries responsible for the youth justice system (MAG, MCYS, MCSCS); and
finding ways to reduce the over-criminalization of Ontario youth compared with other large jurisdictions.
Inquiry into Pediatric Forensic Pathology in Ontario (Goudge Report)
On April 25, 2007, Justice Stephen Goudge was appointed as a Commissioner under the Public Inquiries Act to conduct the Inquiry into Pediatric Forensic Pathology in Ontario. Justice Goudge was asked:
to determine what went wrong in the practice and oversight of pediatric forensic pathology, especially as it related to the criminal justice system from 1981 to 2001, the years in which Dr. Smith was involved; and
to make recommendations to restore and enhance the public confidence in pediatric forensic pathology.
The Inquiry was set up by the government as a result of a review initiated by the Chief Coroner of certain cases of suspicious child deaths where Dr. Charles Smith performed the autopsy or was consulted. The Chief Coroner's Review found that some of the factual conclusions were not reasonably supported by the materials available. The Chief Coroner’s Review was prompted by growing concerns about the work of Dr. Smith in the criminal justice system.
Justice Goudge submitted his report, Inquiry into Pediatric Forensic Pathology in Ontario Report, to the government on October 1, 2008 in which he made 169 recommendations on improvements to the practice of pediatric forensic pathology and its use in legal proceedings.
In response to the Goudge Report, the government has proposed new legislation to overhaul its forensic pathology system. The proposed legislation will, if passed, establish a framework to strengthen the death investigation system, provide for greater oversight and accountability and improve coroner and pathology services in Ontario.
In addition, the Ministry of the Attorney General would work with justice partners to:
expedite cases where injustice is claimed;
develop a compensation framework for those who suffered injustice; and
establish a medical/legal review of convictions involving "shaken baby" deaths.
On August 21, 2008, the government released a report on victim compensation authored by the former Ontario Chief Justice Roy McMurtry. The province asked Mr. McMurtry to make recommendations on victim services following the Ombudsman’s Report on the Criminal Injuries Compensation Board (CICB).
Entitled Report on Financial Assistance for Victims of Violent Crime in Ontario, Mr. McMurtry examined the role of financial assistance for victims of violent crime within the spectrum of victim services and programs provided by the Ministry of the Attorney General.
Endorsing that the government should continue to provide financial assistance to victims of violent crime, Mr. McMurtry made eight recommendations including that a Victim Advocate who reports directly to the Legislature be appointed, streamlining of victim services and that the Ministry publish an annual report on its victim services and programs.
In response, the government would use Mr. McMurtry’s direction to build on improvements made to victim services since the Ombudsman’s report in 2007, including:
investing nearly $115 million in the CICB to benefit approximately 9,000 victims of crime and their families, including support for more adjudicators and staff to speed up the hearing process;
reducing the CICB’s caseload by hearing 40 per cent more cases than before — which means approximately 1,000 more victims had their cases processed this year compared with last;
providing direct assistance through the new Victim Quick Response Program, which covers emergency expenses in the immediate aftermath of violent crime; and
completing 90 per cent of the recommendations made in the Ombudsman’s Report on the CICB.
Ombudsman’s Report on the Special Investigations Unit
On September 30, 2008, Ontario Ombudsman André Marin released a report, entitled Oversight Unseen, of the Ombudsman’s investigation of the activities of the Special Investigations Unit (SIU). The SIU, established under Part VII of the Police Services Act, is a civilian law enforcement agency, independent of the police, that investigates incidents involving police and civilians that have resulted in serious injury, including sexual assault or death.
In the Report, which contains 45 recommendations, the Ombudsman called for new legislation to help strengthen the SIU and sweeping internal changes to dispel “conspiracy theories” and public perceptions that the SIU has a pro-police bias.
Mr. Marin found “endemic” delays and lack of rigour in SIU investigations, a reluctance to insist on police co-operation, and an internal culture overly influenced by a preponderance of ex-police officers among its staff.
The Ombudsman also found that despite legal regulations requiring all police forces to notify the SIU immediately whenever one of their members is involved in an incident resulting in serious injury or death, notifications are routinely delayed, sometimes by days or weeks. Interviews with “witness officers” are also often delayed, even though SIU rules state they must take place immediately and no later than 24 hours after the SIU requests them.
Responding to the Report, the Ministry of the Attorney General has committed to:
provide an additional $700,000, a 12 per cent increase, to fund eight new SIU staff, including civilian investigators and community outreach staff;
provide one-time funding for a Mobile Investigative Centre that will allow SIU investigators to establish an independent presence at the scene of major incidents, and conduct instant, thorough, secure and video-taped interviews with witnesses;
provide for the appointment of SIU Directors to a five-year term;
clarify the accountability and independence of the SIU Director in a new Memorandum of Understanding between the ministry and the SIU to ensure the organization is accountable to the taxpayer, but has total independence in decision-making;
bring issues of concern identified by the SIU to the attention of other ministries on a regular basis as they arise;
lead a discussion with justice sector partners and the public to identify ways to achieve the report’s underlying objectives; and
report back to the Ombudsman every six months with the ministry’s progress on implementing his recommendations.
Other reviews or inquiries in the last two years include the following:
On July 25, 2008, the Ministry of the Attorney General released the Report of the Legal Aid Review 2008 produced by Professor Michael Trebilcock of the University of Toronto. The Report deals with three key issues: funding of the legal aid system, including tariff and salary levels; coverage of legal aid services; and governance and administration of the system.
Former Justice Sydney Robins prepared a report in which he provided independent legal advice on compensation to Steven Truscott following Mr. Truscott’s acquittal in 2007 of a murder for which he had served 10 years in prison. In a news release issued by the Ministry of the Attorney General on July 7, 2008, the government announced a compensation of $6.5 million to Mr. Truscott.
On November 22, 2007, the government released the Civil Justice Reform Project: Summary of Findings and Recommendations, a commissioned report from the former Associate Chief Justice of Ontario Coulter Osborne, on ways to improve the civil justice system. The summary report contains 81 recommendations touching on 18 areas of procedural and substantive law, including unrepresented litigants, small claims, trial management, appeals, technology, courtroom civility and proportionality.
On May 31, 2007, the government released the final report of the Ipperwash Inquiry. The final report was the outcome of a public inquiry called by the government into the circumstances surrounding the 1995 death of Dudley George, who was shot by an Ontario Provincial Police officer during a First Nations protest at Ipperwash Provincial Park. Justice Linden was also asked to make recommendations about how to prevent similar events from occurring in the future.
* Abi Lewis is a counsel with the Policy Division, Ontario Ministry of the Attorney General. The views expressed in this article are solely those of the author and do not reflect the opinion of the Ministry of the Attorney General.
This article originally appeared in Novus Telum, the OBA Young Lawyers' Division Newsletter, Volume 16, No. 1, November/Novembre 2008.
Tongue-in-Cheek Speech at the OBA YLD Rideau Club Event Made Clear the Do’s and Don’ts of Supreme Court Litigation
Many were surprised by Justice Marshall Rothstein’s comments at the OBA YLD event held September 23rd, addressing a group of young lawyers and articling students at the posh Rideau Club in Ottawa. His speech was ostensibly about how to successfully litigate in the Supreme Court of Canada; however, with false pearls of wisdom like “don’t worry about the factum; you can patch it up in oral arguments” giving you the “element of surprise”, the juridical blasphemy entertained the crowd while warning of which blunders to avoid in litigation.
Despite what you may think of him after reading his judgments, Justice Marshall Rothstein has a sense of humour.
Cherolyn Knapp, Chair of YLD East; Lillian Camilleri, Past Chair; Mr. Justice Marshall Rothstein; and Leanne Fioravanti, Articling Student.
Doing the Judge Justice
Justice Rothstein was born December 25, 1940 in Winnipeg, Manitoba. He received his B.Comm. in 1962 and LL.B. in 1966, both from the University of Manitoba. He was called to the Bar of Manitoba in 1966. The same year he married and subsequently had four children (and three grandchildren). His practice centred on Transportation and Competition Law. Throughout his career, he litigated at every level of court up to the Supreme Court, and was a lecturer, as well as a member of a number of government advisory committees and task forces. In 1979, he was appointed Q.C.
In 1978, Justice Rothstein began his career in adjudication by serving as a labour and commercial arbitrator. At that time, he adjudicated for the Manitoba Human Rights Act. In 1986, he became a member of the Canadian Human Rights Tribunal. In 1992, he was appointed to the Federal Court of Canada and the Court Martial Appeal Court, and in 1993, the Competition Tribunal. In 1999, he was appointed to the Federal Court of Appeal. Justice Rothstein was the first Justice to be appointed to the Supreme Court of Canada after being subject to a controversial Parliamentary vetting committee. He was appointed to the Supreme Court of Canada on March 1, 2006.
You Be the Judge – Your Questions for the Justice
Justice Rothstein was very approachable and willing to answer the questions from young lawyers and articling students. Though the number one question was why he writes such long judgments, it was not necessary; his answers to my other questions revealed that he prefers to answer in analogy and narrative.
When asked what he would have done the same or differently when he was an up-and-coming litigator in his early career, he told a story of his first job at a law firm, and how the firm across the street paid more than where he worked. Instead of running across the street for more pay, he stayed where he was and built a reputation. “Don’t worry about money in the early years” he advised. For those of you with gripes about your pay as young lawyers, note that this first job paid him $250 a month.
He also told a story of how he was working for a corporate client who gave him bad legal advice, instructing him to proceed with a course of action that was not legally sound. This caused him some embarrassment with his superiors. “Don’t go off on your own and find out you’ve made a bad decision” he warned. “If you have the slightest doubt, always check.”
“I don’t get a thrill out of deciding things on a policy basis.”
Another question some of you suggested was: what are some common mistakes the Justice sees younger litigators make today as opposed to mistakes made in the past. “I’ve seen it all” he stated in his speech. “The main problem” he elaborated, “is that people don’t prepare.” Though Justice Rothstein is no stranger to preparation, having acquired the reputation of being a hard worker, his advice to those in attendance (as well as his own clerks) was ominously unconcerned with the possibility of different types of working styles. He prefers conformity to his style, which he implied in his speech is empirically demonstrated through his own example.
Finally, I asked what issues he hopes to see come before the court sometime soon. Here he demonstrated his distaste for politically motivated questions of law (like a true jurist), and retreated back to his roots. He said he would like to see something to do with transportation and competition law, what he described as “straight litigation” where he built his career. His pet peeve: “I don’t get a thrill out of deciding things on a policy basis.”
Overall, the experience helped to humanize a man, who many of us have only encountered while combing through his comprehensive judgments. Articling student Leanne Fioravanti enjoyed her experience, saying “I came not knowing what to expect, but was pleasantly surprised at how approachable he was ... and funny.” After hearing his farcical speech, articling student Steven Kennedy said that from now on “I will always read his judgments with a smile.”
* Aaron Grinhaus is an articling student at Gowling Lafleur Henderson LLP in Ottawa.
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