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Aboriginal Law
The Protection of Indigenous Remains
Russell Raikes and Jesse McCormick*
 The sanctity of life is often expressed through reverence for the dead. Every community has a process for honouring those individuals who have shared their experience and formed part of their society. These sentiments extend to the locations which serve as final burial places for the deceased and interference with those sites can evoke strong emotions from individuals who fear potential desecration of human remains. These concerns are particularly acute in the Aboriginal context as many of the sites which serve as burial grounds remain unknown or in the hands of third parties not associated with Aboriginal communities. If not handled appropriately, the discovery of Indigenous remains on privately owned property can quickly become a flashpoint for serious conflict. Recent examples of these types of conflicts are readily apparent in the protracted  occupations of Ipperwash Provincial Park in 1995 and the OKA crisis of 1990. In both of these instances, Aboriginal protestors raised vocal concerns about the protection of Indigenous remains located on properties within their traditional territories. Faced with inaction and mounting fears that their burial sites would be desecrated, they occupied the properties forcing highly publicized standoffs. These types of conflicts have fuelled the development of specialized laws and increased public awareness of Aboriginal concerns. Land owners and developers who discover Indigenous remains on their properties must be cognizant of their legal responsibilities to prevent unnecessary conflict and expense. This paper will briefly examine the applicable protections in Canada for Indigenous remains discovered in situ and provide suggestions for ensuring mutually satisfactory solutions.
Remains Discovered In Situ
Canada is a comparatively new country, having been “settled” only within the last 300 years. That is not to say, however, that the lands were unoccupied prior to European settlement. To the contrary, there are currently more than 700 First Nations (or Tribes as they are known in the United States) whose ancestors occupied or shared occupation of what is now Canada. As a consequence of that prior occupation and the fact that Aboriginal peoples were organized into distinct societies with their own cultures, the discovery of Aboriginal remains in previously undeveloped areas occurs with some regularity.
In Ontario, the Cemeteries Act, R.S.O. 1990, c. C.4, as amended, specifically recognizes Aboriginal burial sites and prescribes the steps to be taken upon the discovery of remains. Similar legislation exists in most of the other provinces in Canada.
Section 68(1) of the Cemeteries Act (Ontario) prohibits the disturbance of any burial site, Aboriginal or non-Aboriginal, except upon instructions of a coroner or pursuant to a site disposition agreement. Anyone who discovers or has knowledge of a burial site is required to immediately notify the police or coroner (Section 69).
Upon notification, the police and coroner will protect the site from further disturbance until the coroner, sometimes with the assistance of an archaeologist, can determine cause of death and origin of the remains. Section 70(1) of the Cemeteries Act (Ontario) allows the Registrar responsible for the administration of the Act to order an owner of the land on which a burial site is discovered to cause an investigation to be made to determine the origin of the site. If the Registrar concludes that such an investigation would cause undue financial hardship to the owner, the Registrar shall undertake that investigation. The investigation is to be done with as minimal disturbance to the site as is reasonable in the circumstances.
Once the origin of the burial site has been determined, the Registrar is then required to declare the site to be either:
(a) an unapproved Aboriginal peoples cemetery;
(b) an unapproved cemetery; or
(c) an irregular burial site.
An unapproved Aboriginal peoples cemetery is land set aside with the apparent intention of interring therein, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were one of the Aboriginal peoples of Canada (Section 71(4)). By contrast, an irregular burial site is a burial site that is not set aside with the apparent intention of interring human remains therein (Section 71(2)).
If the Registrar declares a burial site to be an unapproved Aboriginal peoples cemetery, then the Registrar is required to serve notice of that declaration on such persons or class of persons as are prescribed by the Regulations. Typically, notice is given to the owner of the land, the developer if different from the owner, and First Nations which are located in the vicinity of the burial site. Those who are served with such a notice are required to enter into negotiations with a view to entering into a “site disposition agreement”. The Regulations prescribe the time frame within which those negotiations must take place. If a settlement is not reached within that time frame, the Registrar has the authority to refer the matter to arbitration. The Registrar also has the discretion to extend the time frame if meaningful negotiations are ongoing.
Typically, the negotiations for a site disposition agreement focus on the protection and preservation of the lands for a burial site or the re-interment of those remains elsewhere and the costs and ceremonies associated with that interment. For private land owners and land developers, the discovery of human remains can have an immediate and serious financial consequence which limits or prevents further development of the site. In our experience, most developers are anxious to avoid confrontation which might affect construction progress during Canada’s limited construction season or which might interfere with the ultimate marketability of the property.
Lawyers acting for land owners or developers, who are confronted with this situation, are well advised to immediately retain a qualified and experienced archaeologist. It is essential to determine, as soon as possible, the extent of the land affected, the number of persons who may be interred, even if only a best estimate, and to assess the cultural and historical significance of the site. It is very important that nothing be done that could reasonably be construed as ignoring or desecrating the site. Quite apart from the implications of contravention of the Act, as a practical matter, the reaction of Indigenous peoples could result in forced occupation of the land, police barricades, injunctions and substantial negative press.
In our experience, it is important to share information, regarding the discovery and extent of the site with the First Nation, as early as possible. Most First Nations will be cooperative with the developer in determining what protections are necessary if the remains are to stay in situ or what steps must be taken for the remains to be removed and re-interred on Aboriginal grounds elsewhere. Counsel acting for land owners or developers should expect that all expenses associated with re-interment will be borne by the developer or land owner. The removal of the remains and their re-interment is often accompanied by traditional Aboriginal ceremonies.
Pursuant to Section 74 of the Cemeteries Act (Ontario), the owner of land that contains an irregular burial site shall ensure that the remains found are interred in a cemetery. Again, if it is found that the remains are Aboriginal, then arrangements are usually made through the First Nation for those remains to be re-interred at the cemetery of the local First Nation. Most First Nations are very cooperative. The expenses of re-interment are to be borne by the land owner.
Occasionally, the discovery of remains results from an environmental assessment process. The presence of an Aboriginal burial site on the property may affect the ability to obtain the requisite approvals from the Ministry of Environment or affect how the project is allowed to proceed.
In British Columbia, the Heritage Conservation Act, R.S.B.C. 1996, c. 187 provides that unless authorized by permit, a person ought not damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains (Section 13(b) and (d)).
In summary, provincial legislation prohibits interference with Aboriginal burial sites. It imposes an obligation on land owners and those affected to negotiate. The presence of a burial site may affect the use and development of the property.
Conclusion
Both Aboriginal and non-aboriginal communities in Canada benefit from the preservation and protection of Indigenous remains. Through the operation of specialized legislation, Aboriginal peoples are afforded the protection of their sacred burial sites, while non-aboriginal communities enjoy the preservation of this unique aspect of Canadian cultural heritage. The balancing of the often competing interests of land owners and Aboriginal peoples requires patience, cultural sensitivity and clear communication. Through open dialogue and creative negotiation, conflicts can be avoided and mutually acceptable solutions can be achieved.
* Russell Raikes, Partner, Cohen Highley LLP, (519) 672-9330. Jesse McCormick. Student-at-Law, Cohen Highley LLP, (519) 672-9330. Russell and Jesse gratefully acknowledge the assistance of Ms. Alexandra Rosu in the research necessary for this paper.
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Alternative Dispute Resolution
Beyond Mars and Venus
An Introduction to Personality Type for Dispute Resolution Practitioners
Genevieve Chornenki*
This article originally appeared in the OBA Alternative Dispute Resolution Section Newsletter, Volume 16, No. 1, December/Décembre 2007.
Every dispute resolution practitioner – even the most rough and ready among us - is an amateur psychologist at heart. We have to be. We work with people all the time and they routinely confound us by their words and deeds.
Psychology’s theories, models and tools provide ways to understand people better, thereby helping us work more effectively. One model for the different ways people prefer to use their minds is Personality Type (Type). This article provides an overview of Type and is the first of a series of three.
According to Type, inborn personal preferences influence a wide range of behaviours in predictable ways. These include how people express themselves and what tends to irritate or excite them, important considerations in all kinds of dispute resolution procedures. Of course, we see the behaviours, not the mental process behind them, but Type helps us interpret the behaviours in neutral, non-judgmental ways.
Type is particularly helpful for mediators who know from experience how often personalities drive outcomes. Learning something about Type reduces our deer-in-the-headlights reactions when someone does something unexpected or, shall we say, unhelpful. Type can make our responses less ad hoc and help us intervene more appropriately in conflict situations.
Type isn’t a Mars – Venus thing. It cuts across gender as well as culture, and is thus less stereotypical. At least it should be if properly understood. Type is based on the work of Swiss psychologist Carl Jung. This model was applied in a practical way by a mother-daughter team, Katherine Briggs and Isabel Myers. They created an inventory of “Personal Preferences”. Based on this inventory, they developed a tool known as the Myers-Briggs Type Indicator (MBTI), which is widely used. Extensive research has been conducted on the validity and reliability of the MBTI.1
Leaving out here more than I put in, I’ll try to concisely explain Type’s personal preferences without jargon, as follows:
Type identifies four major categories or axes where people differ:
- What energizes them (or depletes their energy)
- What they recognize as information and pay attention to
- How they make decisions, and
- How much (or how little) organization they prefer in their lives.
In each category there are two preferences, each at opposite ends of the category’s spectrum.
The MBTI sorts individuals by which preference they naturally choose. By “naturally” I mean reflexively without conscious analysis and choice, like the way you automatically put a camera to one eye or the other before shooting a picture. When an individual’s preferences are verified and put together they result in a Personality Type with recognizable characteristics. There are 16 Personality Types and when a person is accurately “typed” he or she usually feels comfortably understood.
Type doesn’t give you the complete picture on every single human being but it gives you important clues to understanding people on their own terms and increases your chances of getting through to them in ways that count.
In mediation or facilitation where the parties are together in the same room, Type lets us recognize and organize the human behaviours along the four axes mentioned above. For example, on axis 1, some people will prefer to talk things out as they are in the process of thinking, while others prefer to think things through privately and not necessarily talk them out. On axis 2, some people want lots of detailed information whereas others find the “big picture” and broad concepts more helpful. On axis 3, some will analyse matters logically and impersonally while others will be more interested in the impact on people (themselves and others). On axis 4, some people will come to decisions fairly rapidly whereas others prefer to process information for awhile before deciding.
And these are just some of the ways that personal preferences are reflected in people’s behaviour. Is it any wonder then that there is conflict in the world – in workplaces, marriages and businesses? Can you see now why you might have failed to reach someone in a group or why there was ongoing friction that you couldn’t get a handle on? Can you imagine how to use Type to offer people more constructive ways to see each other?
It seems complicated at first, but with a little time and attention, Type quickly begins to make sense. I hope that this overview has given you some idea of the importance of Type to dispute resolution practitioners. In the next issue, I will give specific examples of Type in action.
* Genevieve Chornenki (www.genevievechornenki.com) was inaugural Chair of the ADR Section of the OBA. She has practiced ADR since 1989. She is qualified to administer the Myers-Briggs Type Indicator and teaches the use of Personality Type.
1 See MBTI Applications: A Decade of Research on the Myers-Briggs Type Indicator, Allen A. Hammer, Editor.
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Charity and Not-for-Profit Law
Looking Back and Looking Forward
Arthur Drache*
This article previously appeared in the January issue of Not for Profit news, and Charitable Thoughts, the OBA Charity and Not-for-Profit Law Section Newsletter, Volume 11, No. 2, January/Janvier 2008.
The first issue of a new year seems the appropriate time to see where the sector has been and where it is going, at least in terms of dealing with the various parts of government, both federal and provincial.
Usually, the main “event” of the year for charities at the federal level is the Budget. This time around we received what we referred to as a poisoned chalice. Legislation to allow the tax-free transfer of appreciated publicly listed assets to private foundations was announced. This should have been a great achievement, but at the same time the notion of “excess corporate holdings” was introduced for private foundation which may require widespread asset divestiture. In November, there were some slight signs that Finance is having some second thoughts.
When the Notice of Ways and Means to implement the legislation was introduced on November 13, Finance Minister Flaherty said:
“As a result of consultations with private foundations, the Government intends to further review the excess corporate holdings rules in order to provide relief in respect of unlisted securities held on March 19, 2007 and to consider the treatment of corporations wholly owned by such foundations. Minister Flaherty indicated the Government is moving ahead with the legislation at this time, in advance of the conclusion of this review, in order to ensure that the new rules providing a capital gains tax exemption on the donation of listed securities to private foundations are enacted as soon as possible.”
We shall just have to wait to see what develops in 2008.
From an administrative point of view, there has been a considerable shift of personnel in the Charities Directorate. At the top, Terry de March has become the Director General, replacing Elizabeth Tromp. But there have been a number of other changes involving key positions. We have also been told that Carl Juneau will be returning to the Directorate after a lengthy secondment to Finance, though it is not as yet clear what his role will be.
There is much to be unhappy with vis-à-vis the Directorate. Audits have become more widespread and there is a much lower tolerance for deviations from policy. The main (but not sole) area of contention is the interpretation of the disbursement quota rules, particular with regard to third party fund-raising costs. There have been promises to review the current policy (which is much more restrictive than was the case when the legislation was first introduced) but so far nothing has happened. It is also clear that there is a huge problem for smaller charities which have interests outside the country and the traditional approaches of using agency agreements and joint ventures seem to draw inordinate administrative demands.
Matters seem to have been exacerbated (though the evidence remains anecdotal) by the fact the lower levels of the Directorate are poorly versed in either charity law or the appropriate Income Tax Act provisions. This leads to rejections of valid applications and requests backed up with refusals to reverse the original decisions even in the face of evidence that the decision was wrong. Of course, in due course if you move higher up the food change, you will eventually find somebody who is well enough versed in the law to do the right thing…after six or eight months.
As we noted in our October issue, the CRA’s own figures show that a greater percentage of applications for charitable status are being turned down. The CRA data also shows a slow-down in dealing with files. And where there has been an administrative revocation for failing to file the T-3010, the bureaucrats are forcing the applicants for reinstatement to jump through hoops like never before. And while the introduction of intermediate sanctions was heralded as a major policy breakthrough when the legislation was first announced, CRA seems loath to use the procedure…perhaps fearing what will happen when appeals are taken to the Tax Court where, under their rules, bureaucrats can be called as witnesses to justify their actions in each appeal.
On the court scene, there was little to report. The Supreme Court heard the AYSA case and came out with a mundane but correct decision. But of course, that might not have been needed had the Federal Court of Appeal used common sense when the case was first heard. The bad part of the judgement was the explicit statement that the Supreme Court had no interest in broadening the definition of what is charitable, with the ball being lobbed to Parliament which has consistently shown a lack of interest in the topic.
The Travel Just case was (properly in our view) refused the chance to go to the Supreme Court. The Redeemer Foundation case was accepted, and will be heard in February 2008.
Arguably, the brightest spots came at the provincial level. First, Alberta’s budget created a tax “bonus” for charitable donations, giving credits which are worth much more than what is theoretically appropriate. Then, both Newfoundland and New Brunswick appointed ministers to “represent” the third sector. And though the feds seem to have abandoned its poorly conceived “reform” of the Canada
Corporations Act, both Ontario and British Columbia are forging ahead with reforms proposals, though the nature of what the final product is remains to be seen.
All in all, we feel that 2007 was not a great year for the sector, though there were some bright spots.
So what about 2008?
We expect nothing for the sector in the next budget. There are many things which could be done, including going to a one-tier tax credit system or implementing some sort of regime for charitable remainder trusts. Our best guess, at this stage, is that nothing much will happen.
We are also pessimistic about the CRA. Compared to (say) the 2001-2003 period, where the Charity Directorate seemed to be in sync with the sectoral needs, our perception is that the bureaucrats view the charities as all potential “bad guys” and the new approach to audits and assessment of applications reflects the overall CRA approach, namely that taxpayers are untrustworthy cheats and audits are designed to prove that point. Charities are now operating in an “us” and “them” environment vis-à-vis the Directorate and frankly we don’t see a lot of improvement in attitude on the horizon.
There do not seem to be many cases wending their way to the courts, though, of course that can change. The only one which we know will be heard is the Redeemer Foundation case, which is essentially procedural. We expect the Federal Court of Appeal’s decision to be overturned, but even if that happens, it will have little impact on the vast majority of charities.
We cannot guess what may happen at the provincial level in 2008. With 10 provinces and two territories developing policies and bringing down budgets, it is almost impossible to foresee changes. But certainly if the 2007 pattern follows, there may be some pleasant if unexpected surprises.
We have to say that when we have delved into forecasting from time to time in years gone by, our success rate (like our success rate before the Federal Court of Appeal) has been nothing to brag about. We would like to hope that we are wrong on many of our thoughts about 2008 and that despite our pessimism, it will be a banner year for the sector. But we aren’t betting on it.
* Arthur Drache, Drache LLP, Counsel to Miller Thomson LLP.
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Citizenship and Immigration
Who’s Your Daddy?
An Argument that Some Things are Best Left Undefined Michael Battista and Kelly D. Jordan*
 LEGAL TRAINING often leads to an appreciation for concepts which are defined as precisely as possible in order to provide certainty in the parameters of the law and confidence in the advice that we provide to clients. However, a serious drawback of definitional precision is the risk that concepts and definitions become frozen based upon society’s views at a fixed period of time. This risk is particularly serious when considering the evolving social conception of family in Canada.
There can be no doubt that one of the most remarkable recent trends in Canadian society has been the evolution of Canadian society’s understanding of “family”. We have moved from an understanding of family built upon a heterosexual two-parent household to recognizing the legitimacy of single-parent households, same sex  parents, and now most recently, parenting by more than two people: A. (A.) v. B. (B.).
No Definition of Parent
In order to keep pace with change in society, it is sometimes best that legal terms are left undefined. A good example in immigration law is found with respect to the definition of spouse. In the Immigration Regulations, 1978, spouse was defined with respect to a person as being the party of the opposite sex to whom that person is joined in marriage. However the Immigration and Refugee Protection Act and Regulations contain no definition of spouse in what can only be assumed as an acknowledgment of the changing legal conception of spouses based on the legal challenges to the heterosexual definition of marriage which were gaining strength prior to the implementation of IRPA in 2002.
The Canadian Citizenship Act contains no definition of “parent”, but provides in paragraph 3(1)(b) that a person born outside of Canada to at least one Canadian parent is a citizen. In the Citizenship Regulations, “parent” is defined as “the father or mother of a child, whether or not the child was born in wedlock, and includes an adopted parent”. In neither the Citizenship Act nor the Regulations is it established whether a blood relationship, or some other factor, is required for to be a parent, and therefore it has fallen upon the courts to define the term.
The Federal Court dealt with this definitional vacuum in the case of Valois – D’ Orleans v. Canada. This case dealt with the cancellation of a citizenship certificate issued to a person born in Russia. At the time of his birth, the Applicant’s mother was Russian and was married to a Canadian citizen. The Applicant’s mother had obtained a citizenship certificate based on her husband’s Canadian citizenship.
Following the issuance of the citizenship certificate to the Applicant, it was discovered that he was not the biological child of the Canadian citizen. The Applicant’s parents were subsequently divorced and in those proceedings, an Ontario Family Court ruled that the Applicant was not a child of the marriage and that no child support would be payable.
The Applicant challenged the cancellation of the citizenship card, arguing that “parent” ought to be defined broadly to include a person having a relationship as a parent with the child, at least at the time of birth of the child, whether or not there is a blood relationship. In the absence of jurisprudence on the issue of the definition of “parent”, Hughes J. determined that “as it stands, the Act does not, save for an adopted parent, depart from the ordinary meaning that a parent must be one who is in a blood relationship with a child.” The cancellation of the citizenship certificate in that case was upheld.
“Parent” Defined in Ontario Family Law
This restricted definition of parent may have been appropriate based upon the particular facts before Hughes J. However such a restricted definition is inappropriate when considering the evolving social conception of the family and in particular the increasing use of assisted reproductive technologies in creating families. In Canada, issues of parentage are a provincial responsibility and it is submitted that provincial statutes and family law jurisprudence can effectively add content to the definition of “parent” for citizenship purposes.
While the genetic relationship between a parent and child has always been an important consideration in the determination of parental rights and obligations in Canada, family law has evolved to recognize that non-genetic relationships between adults and children and in particular the “settled intention” of a parent may be sufficient to result in parental entitlements and obligations. This recognition has been based upon the advent of gamete donation, embryo donation, surrogacy, and gestational carriage, which has blurred the distinction between “biological parents” and “intended parents”.
For most children in Canada, their birth registration establishes their relationship with their parents. In Ontario, upon the birth of a child, the Vital Statistics Act governs birth registration. This legislation does not define “father”, “mother”, or “parent” nor does it prescribe that each child must have only one mother and father. Section 1 of the VSA defines “birth” as the “complete expulsion or extraction from its mother of a fetus”. As a result, for the purposes of that statute, the “mother” is the birth parent of a child and would include a mother who is not genetically related to the child by reason of using an egg donor. Once registration of the birth is made, the “father” as listed is presumed to be the father under the Children’s Law Reform Act unless the contrary is proven on the balance of probabilities. More recently, the regulations under the VSA have been amended to allow for couples who have conceived by donor insemination with an unknown donor to list the other parent despite the lack of a genetic relationship.
The Children’s Law Reform Act also sets out a framework for the determination of legal parentage. Subsection 8(1) sets out who is presumed to be the father unless the contrary is proven on a balance of probabilities. It states that a male person in circumstances including the following is presumed to be the father:
- the person who at the time of the child’s birth or within 300 days is married to the child’s mother;
- the person was cohabiting with the mother of the child in a relationship of some permanence at the time of the child’s birth or within 300 days of birth; or
- the person has been found or recognized by a court of competent jurisdiction in Canada to be the father of the child.
In L. v. L. 114, DLR (4th) 709 and Zegota v. Zegota, Ontario Courts have recognized parentage of a male spouse of a mother of a child conceived through donor insemination.
A More Flexible Realistic Approach
Thus, family law provides a much more flexible and realistic approach to the determination of parentage, recognizing both heterosexual families who are dealing in fertility issues, but also same sex families, who by necessity have required gamete donation or gestational carriers.
This approach to parentage already currently forms a part of our immigration law within the context of applications for permanent residence. Processing Manual OP2 in Section 5.14 defines “biological child” in the regulations as including a child who is not genetically related to the parent making the application but was born through the application of assisted human reproductive technology and includes the spouse, common law partner, or conjugal partner of the biological parent, even in the absence of a genetic relationship.
The Valois – D’ Orleans case must be placed in its particular factual context. That context included misrepresentation by the Applicant’s mother that the Applicant was the “natural” child of the Canadian citizen, the family court’s determination that there was not a settled intention of the Canadian citizen to treat the Applicant as his child, and the Canadian citizen’s refusal to assume parental responsibilities for the Applicant.
Canadian law has now eliminated the discrimination which previously existed between adopted and non-adopted children in their different entitlements to citizenship. It is time to eliminate the potential for discrimination between biological children and those conceived through the use of assisted reproductive technology by instituting a flexible approach to the definition of parent within the citizenship context.
* Michael Battista and Kelly D. Jordan practice law together in Toronto.
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Civil Litigation
Conflicted Counsel: Acting as the Source of a Deponent’s Knowledge, Information, and Belief
Nazanin Aleyaseen and Jody W. Iczkovitz*
 This article originally appeared in the OBA Civil Litigation Section Newsletter, Volume 16, No. 1, October/Octobre 2007.
In interlocutory motions practice, what comfort can counsel with carriage of an action take in informing the deponent of an affidavit of a fact in the litigation? The practice is widespread and passed on from one generation of lawyers to another, without a second thought. If you have never considered that the information you give the court through an intermediary may result in an order of disqualification, read the recent unreported decision of Mabott v. Greenwood.1
In Mabbot, a motion was brought to compel answers to undertakings and to obtain  security for costs. After dismissing the motion for security, the Court dealt with costs by receiving from the respondent’s counsel an affidavit from an associate at her firm. The affidavit made personal allegations against the student appearing for the moving party. The assertions against the student were based on information provided to the affiant by the respondent’s counsel. Based on the allegations contained in this affidavit, the Master awarded costs against the moving party/defendant for alleged wrongdoing of the student.
The responding party appealed the decision. On appeal, the Court set aside the costs award and ruled that a gross injustice was perpetrated since the Master was not alive to the issue that the affidavit of the responding party contravened the principle that a lawyer as an officer of the court cannot advocate on his/her client’s behalf and also become a witness in the proceeding.
The Mabbot decision is significant because it illustrates how the courts are increasingly scrutinizing a practice which attempts to circumvent the code of professional conduct2 and the law when counsel acts, not as the deponent for an affidavit, but as the source of the information relied upon by the deponent. In fact, the practice has become so prevalent that often the courts are not “alive to the issue” and the case law remains uncertain.
The Canadian Bar Association Code of Professional Conduct, Chapter IX, Commentary 5 provides:
The lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer’s partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or belief, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer must not in effect become an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as advocate in any appeal from the decision in those proceedings. There are no restrictions upon the advocate’s right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.
Similarly, Rule 4.02(1) of the Law Society of Upper Canada’s Rules of Professional Conduct provides:
Subject to any contrary provisions of the law or discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not submit his or her own affidavit to the tribunal.
The Ontario Court of Appeal held, in Imperial Oil Ltd. v. Grabarchuk, [1974] O.J. No. 1911, that it was improper for the deponent of an affidavit to act as counsel and rely upon that affidavit.
Far too often, affidavits from solicitors, or other persons in the employ of the law firm, are tendered in contentious proceedings. This is an unacceptable practice. The best evidence is from a deponent with actual knowledge, usually the client. [emphasis added]
Despite the accepted and logical extension of the principle in Imperial Oil, supra, to counsel who is not the affiant but the source of the information relied upon by them with respect to a key factual matter, this unacceptable practice has become honoured more in the breach than in the observance.
In Planned Insurance Portfolios Co. Ltd. et al. v. Crown Life Insurance Co. [1989] O.J. No. 262, the Ontario High Court of Justice held that while the Canadian Bar Association, Code of Professional Conduct, expressly prohibits the lawyer’s partners and associates from becoming witnesses, it noted that the Ontario Code deliberately deleted the reference to the lawyer’s partners and associates. The Court stated:
All counsel acknowledge that the local practice in Ontario is that lawyers frequently appear on motions where their partners have filed affidavits even where the matters are extremely controversial and where there has been long and contentious cross-examination on the affidavits.
Similarly, in Corporation of the Township of Essa et al. v. Guergis et al. [1993] O.J. No. 2581 the Ontario Divisional Court held that while the rules and commentary of the Code of Professional Conduct adopted by the Canadian Bar Association prohibit the use by counsel of an affidavit of his partners or associates; the Professional Conduct Handbook of the Law Society of Upper Canada (LSUC rules) do not prohibit the conduct and that Courts should be reluctant to adopt the CBA Code in preference to the LSUC rules in such situations. The Court stated:
I do not accept the argument that when a lawyer is compelled to testify against the “other” side in a lawsuit the lawyer’s firm must always be prevented from acting in the lawsuit. There are a variety of scenarios which might develop at, or during, trial. The possible conflict as discussed in the Kitzerman decision, supra, should not automatically result in a law firm’s removal. In the course of litigation an honest witness is often compelled to give evidence which will assist a party that witness feels is “opposite.” I do not agree that such a possible conflict requires removal in all cases. There may be some where it does. I am not persuaded that decision should be made at this pre-trial stage of proceedings in this case.
The Divisional Court has also articulated the following factors to be considered in a situation where a complaint is made about affidavits being filed by members or employees of the law firm conducting the litigation:
a. the state of proceedings;
b. the likelihood that the witness will be called;
c. the good faith (or otherwise) of the party making the application;
d. the significance of the evidence to be led;
e. the impact of removing counsel on the party’s right to be represented by counsel of choice;
f. whether trial is by judge or jury;
g. the likelihood of a real conflict arising or that the evidence will be “tainted”;
h. who will call the witness if, for example there is a probability counsel will be in a position to cross-examine a favourable witness;
i. the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
Therefore the prohibition against the use by counsel of an affidavit of his partners or associates as articulated in professional codes of conduct has not been consistently upheld in Ontario. Some decisions acknowledge this practice while others, as in Mabbot, expressly forbid it; this has led to uncertainty in the profession, and cries out for more jurisprudence in this area.
In maintaining the distinction between counsel and witness, lawyers must be aware of the impact of these subtle but important practice directives. Lawyers must resist the urge to cross the line between advocate and partisanship. In the right case, an ill-advised comment in an affidavit sworn on information and belief may jeopardize the right to appear for one’s client at the hearing.
* Nazanin Aleyaseen and Jody W. Iczkovitz practice insurance law and civil litigation at Gilbertson Davis Emerson LLP.
1 Unreported; Court File No. 03-CV-259231CM1, heard November 16, 2006, rev’d July 6, 2007.
2 Lawyers must be cognizant that while not law, and not binding on a Court, The Rules of Professional Conduct are persuasive as an important statement of public policy. MacDonald Estate v. Martin, [1990]
3 S.C.R. 1235 at para. 18 (S.C.C.).
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Education Law
Cyberbullying: Are We Ready?
Brenda Stokes Verworn*
 This article originally appeared in the OBA Education Law Section Newsletter, Volume 17, No. 1, October/Octobre 2007.
The issue of cyberbullying is raising interesting and important legal questions for the education sector. More and more students regularly use email and internet sites such as You Tube, Facebook, My Space, Freevote.com, and Rate My Teacher to post material about other students or teachers that is humiliating, hurtful, defamatory, harassing, threatening, or even sexually explicit. “The problem with the internet is the mobbing effect because when hundreds of people are saying bad things about you, it is more hurtful and damaging than just one person’s comment,” said Collette Dowhaniuk, a retired Principal who is now a Protective Services Consultant at the Ontario Principals’ Council. Collette Dowhaniuk was one of three panellists at the May 23, 2007, Education Law Dinner Meeting session that focused on “Cyberbullying.com.” The panel, which was moderated by Nadya Tymochenko, lawyer with Keel Cottrelle LLP, also included Lee Ann Chapman, lawyer at Justice for Children and Youth, and Eric Roher, legal partner at Borden Ladner Gervais LLP.
While “freedom of expression” is a fundamental right in Canadian society, which is protected by s. 2 (b) of the Charter, the expression of views must be balanced with maintaining a safe, respectful, and ordered learning environment. Consequently, the debate centres over which expressions are reasonable and which expressions are protected.
“One out of four Grade 7 students report being victims of cyberbullying,” Eric Roher shared with the dinner participants. “Cyberbullying is the use of information and communication technologies to support deliberate, repeated, and hostile behaviour that is intended to harm others.” Under the new Safe Schools Act legislation (Bill 212) that takes effect February 1, 2008, “bullying” is now included as an infraction for which suspensions must be considered, as well as conduct that impacts on the climate of the school.
Where there is abusive language, or the comments are anti-semitic, racial, or expressions of hatred, then such language is not protected in Canada. Likewise, sexual comments and death threats are not acceptable. However, in the context of schools, the test is not “did the comments piss you off,” rather, the comments must result in a material and substantial disruption in the school. In other words, there needs to be a link or nexus to school in order to impose school discipline.
While the vast majority of students regularly use email, only a small percentage of students talk with their parents about what they do online, or what others are doing to them. Students who may be the victim of bullying or hurtful comments are concerned about reprisal, intimidation and loss of computer privileges. We need to tell kids who are the victims of bullying to “do not reply, get a new email address and tell an adult you trust,” advised Eric Roher. “Students need to know that employers and universities are now googling potential employees / students and so this type of behaviour on internet sites may cause future embarassment to them.”
Schools need to be proactive in meeting the new challenges created by technology by ensuring their Board Policies and School Codes of Conduct forbid the use of computer technology to communicate disruptive, deliberate, demeaning, or harassing comments. If students or staff are the victims of threatening comments, sexual exploitation or racial/homophobic comments, then internet servers like Yahoo and Facebook will often cooperate with School Boards to take down the offensive material. “Keep in mind Facebook is a huge corporation with widespread use and so we can not make it go away or shut it down in all cases,” Eric Roher warned. “Sometimes, in gray areas Facebook requires a court order to remove some material.” In addition, there is a code on Facebook on the bottom of the page which can be sent to Facebook so that they can track down the sender, which can be helpful in the disciplinary investigation process.
“Kids need an outlet to vent,” Lee Ann Chapman said. She encouraged educators to seize teachable moments by talking about examples on the internet of hurtful comments and why they are hurtful and why students should not do this. School Boards should consider using the principles of restorative justice to teach students the far reaching impact of their actions. “Restorative justice goes a long way to empower the victim of bullying. We need training and funding.” We need to create a culture of respect and civility, that uses the tools of dispute resolution and mediation.
“Three issues for students are privacy rights, freedom of expression and being the victims of bullying,” Lee Ann Chapman said. “From a kid’s perspective being on Facebook is a private conversation and they can restrict who joins them on their site, so they see it as just talking with friends.” “We must remember kids have the same constitutional rights as adults, although these rights may be somewhat diminished while at school,” shared Lee Ann Chapman. “Even disrespectful comments may be upsetting, but not necessarily actionable.” There needs to be a direct connection to a school activity (such as submitting an inappropriate assignment, or hacking into the school network to manipulate marks) or actions that present a true and substantial threat to others.
“We need to educate kids on the appropriate use of technology and not make rules that are unenforceable.” Lee Ann Chapman advised educators that the banning of cell phones is probably good because photo phones have encouraged fighting and filming of school yard brawls. The tape of the fight is more powerful than mere words. In contrast, Collette Dowhaniuk said “not to ban cell phones entirely but to instead put reasonable limitations on their use,” which is more realistic and enforceable. “Victims and parents look to school administrators to mediate,” Collette shared. “Principals need clear language to develop a cogent response - they are not just making up the rules.” Determine in advance how you will handle a student cheating on tests by text messaging; or a student taking an inappropriate photo of another student; or a student taping an irate teacher in the classroom and posting it on the internet.
Students need to understand what “bullying” is and that it involves the bully, the victim and the bystanders. Principals need to understand the concept of “nexus” and ask is it affecting the operation of the school.
Technology is a powerful means of communication, but many students view the “internet” like the last generation viewed the “telephone.” “Petty extortion, notes, gossip and rumour have been around for years, but cyberbullying is new and more accessible,” Collette Dowhaniuk warned. “Kids think they are invited members in a private conversation or that their comments can be immune from the law or consequences because it is not face to face comments, but protected by the anonymity offered by the internet.” This is why we as educators need to let kids know the long term consequences of using the internet. “If you act stupid on the internet, it is forever, because you can’t shred the internet.” Today Google searches are done by employers on prospective employees and also by colleges, universities, and scholarship committees.
Students view the internet and Facebook as a social network site. Students think the internet is private, and they speak informally and inappropriately, often even viciously. Educators need to understand this or we will be overwhelmed monitoring this type of behaviour.
* Brenda Stokes Verworn, Board Lawyer, District School Board of Niagara, (905) 641-1550.
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Health Law
Amendments to the Adoption Information Disclosure Act
Cheskes v. Attorney General of Ontario
Candace Chan*
The Privacy and Health Law Sections of the Ontario Bar Association expressed concern about the lack of privacy protections in 2005’s Adoption Information Disclosure Act. Those concerns were proved correct in a September 2007 decision of the Ontario Superior Court of Justice.
In 2005, the Privacy and Health Law Sections of the Ontario Bar Association prepared submissions to the Standing Committee on Social Policy expressing concern about the application of the Adoption Information Disclosure Act (the “Act”, at that time being proposed as Bill 183) to adoptions finalized prior to the enactment of the Act. The submissions outlined three concerns: first, that the provisions of the Act interfered with established privacy expectations with respect to past adoptions; second, that it placed a heavy onus on birth parents and adopted children who wish to keep their identities and personal information confidential; and third, that the safeguards implemented by the Act to prevent contact between adopted persons and birth parents did not prevent unwanted disclosure of identifying information. Instead, the submissions supported a “no disclosure” option for all Ontario adoptions finalized prior to the enactment of Bill 183.
These issues were considered by the Ontario Superior Court of Justice in its recent decision on September 19, 2007, in Cheskes et al. v. Attorney General of Ontario,1 which held that provisions of the Adoption Information Disclosure Act that allowed adopted persons and birth parents to access birth registration forms and adoption orders violated the right to liberty protected by section 7 of the Canadian Charter of Rights and Freedoms by allowing retroactive access to confidential adoption records without the consent of the person being identified. Further, the Court held that this violation was not in accordance with the principles of fundamental justice, and therefore could not be upheld under section 1 of the Charter.
Prior to the enactment of the Act, adoption records in Ontario had been confidential since 1927. Adoptees were not entitled to a copy of their adoption order or original birth registration. Birth parents similarly were not entitled to a copy of the adoption order. Disclosure was permitted only in cases of mutual consent or true emergency.2
Under the Act, the Vital Statistics Act was amended in November 2005, to allow for a new open system that enabled adopted persons who are 18 years of age or older to apply to the Registrar General for a copy of his or her birth registration or adoption order. Birth parents were permitted under this legislation to apply for copies of the adopted person’s birth registration, substituted birth registration and adoption order, as long as the adopted person has reached the age of 19 years.
Two safeguards were available under the Act for persons wishing to prevent disclosure. First, persons who did not wish to be contacted are able to file a “no contact” notice with the Registrar General, which, if violated, had the potential to give rise to criminal prosecution and fines. Second, birth parents and adult adoptees could apply to the Child and Family Services Review Board for a “non-disclosure order,”3 however, the Board was only required to grant such an order in exceptional circumstances to prevent sexual harm or significant physical or emotional harm to the adopted person or birth parent.4
The four applicants in the Cheskes case argued that their rights under section 7 of the Charter were infringed by the Act “because their personal identifying information will now be disclosed against their consent and contrary to their desires for personal and family privacy.”5 Furthermore, they argued that the two safeguards were ineffective at protecting the applicants against this infringement. While the “no contact” provision prevents a birth parent or adoptee from contacting the other through the imposition of criminal sanctions and fines, it does not prevent the disclosure of identifying information. Moreover, the Act requires adoptees and birth parents to make an application to a government board in order to have the “no contact” protection or non-disclosure order put into place. This process, the applicants argued, is not a reasonable procedure in a free and democratic society, and therefore, the infringement cannot be justified under section 1 of the Charter.
The Court held that the applicants’ right to liberty as set out in section 7 had been infringed.6 In making this finding, the Court concluded that:
the disclosure of birth and adoption records under the new law, in circumstances where a reasonable expectation of privacy has been created … constitutes an invasion of the dignity and self-worth of each of the individual applicants, and their right to privacy as an essential aspect of their right to liberty in a free and democratic society has been violated.7
The Court found that “neither the no-contact provision nor the non-disclosure procedure tempers this breach of the applicants’ liberty interest.”8 A person’s right to make decisions about the disclosure of identifying adoption information that could profoundly alter his or her life is a fundamental personal decision protected by the right to liberty under section 7.9 In addition, the Court found that the release of adoption information to third parties without an individual’s consent breached the individual’s reasonable expectation of privacy, which is, in the Court’s determination, a principle of fundamental justice.
The relevant provisions of the Act were declared invalid and of no force and effect.
* Candace Chan is an associate in the Toronto office of the National Health Industry Group of Osler, Hoskin & Harcourt LLP.
1 Docket 06-CV-319936PD2, September 19, 2007. Not yet reported.
2 Ibid. at para. 16
3 Ibid. at paras. 23-24
4 Ibid. at para. 23
5 Ibid. at para. 51
6 Ibid. at para. 85
7 Ibid. at para. 83
8 Ibid. at para. 84
9 Ibid. at para. 88
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Insurance Law
The Supreme Court of Canada Clarifies the Scope of Coverage under Standard Form Automobile Policy Language
Alan D’Silva and Ellen Snow*
 This article originally appeared in the OBA Insurance Law Section Newsletter, Volume 18, No. 2, January/Janvier 2008.
The Supreme Court of Canada recently released two decisions clarifying the scope of coverage under standard form automobile policies. In Vytlingam v. Citadel General Assurance Company1 and Herbison v. Lumbermens Mutual Casualty Company, the Court re-affirmed that liability under standard form automobile insurance policies is only triggered where the insured vehicle’s use in some way causes the harm suffered and this causal connection must go beyond a mere “but for” test. These twin judgments are good news for automobile insurers and policyholders alike, as they provide certainty in an area of the law that has been plagued with conflicting  lower court decisions regarding when liability under automobile policies is triggered.
A. The Cases under Appeal to the Supreme Court of Canada
The facts in the Vytlingam and Herbison cases varied greatly and dealt with different indemnification provisions in standard form automobile policies. However, the central issue in each decision was how to determine whether injury or damage arose “directly or indirectly” from the use, operation or ownership of an insured vehicle.
In Vytlingam, the claimant was injured when two individuals used an inadequately insured vehicle to transport boulders to a highway overpass and dropped those boulders onto the traffic passing below, catastrophically injuring Mr. Vytlingam. The issue was whether Mr. Vytlingam was entitled to coverage under the Family Protection Endorsement OPCF 44R included in his family’s auto insurance policy. OPCF 44R entitles a policyholder to recover damages from his insurer for bodily injuries arising directly or indirectly from the use, operation or ownership of an inadequately insured motorist.
In Herbison, the claimant was accidentally shot during a hunting accident after his friend, Mr. Wolfe, drove to the hunting site, stopped and exited his vehicle and shot Mr. Herbison whom he had mistaken as a deer in the woods. Mr. Herbison sought recovery of his damages he recovered in a negligence action against Wolfe from Wolfe’s automobile insurer under section 239 of the Insurance Act, alleging that Mr. Herbison’s injuries arose indirectly from Wolfe’s use of his truck to get to the hunting site. Section 239 of the Insurance Act permits recovery by third parties who have been injured directly or indirectly from an insured’s use, operation or ownership of a motor vehicle.
In both cases, the Ontario Court of Appeal applied the earlier two-part test for establishing coverage set by the Supreme Court of Canada in Amos v. Insurance Corp. of British Columbia2 to find that Mr. Vytlingam and Mr. Herbison were entitled to recover under the standard form automobile policies. The Amos test requires that two conditions be satisfied in order for the insurance policy to be triggered:
(i) the accident must result from the ordinary and well known uses to which automobiles are put (the “purpose test”); and
(ii) there is a causal nexus (although not necessarily a direct nexus) between the injuries and the ownership, use or operation and that connection is more than incidental or fortuitous (the “causation test”).
The majority of the Court of Appeal in both instances applied Amos broadly, accepting that the claimants’ injuries arose indirectly from the use of the insured vehicles since, in each case, the wrongful activity of either dropping boulders from an overpass or negligently shooting at an unidentified target, would not have occurred but for the role of the car in transporting the wrongdoer’s to the site of the injury.
B. Clarification of the Scope of Coverage by the Supreme Court of Canada
The Supreme Court of Canada rejected the Court of Appeal’s expansive approach to construing insurance coverage, finding that neither Mr. Vytlingam nor Mr. Herbison’s injuries were covered under the automobile policies in issue. In so doing, Justice Binnie, writing for a unanimous Court in both cases, set out clearer guidelines for lower courts in how to apply the Amos test to determine the scope of auto insurance coverage.
(i) The Amos Test Applies to Indemnification and No Fault Insurance Provisions
The first important clarification provided by the Court regarding the application of the Amos test is that the same test governs regardless of whether the insurance clause in question provides indemnification or no-fault coverage.
In Amos, the plaintiff was driving his van when he was swarmed by a gang and shot through the window of his vehicle by an assailant attempting to gain entry. The claimant in Amos was found entitled to recover under the no fault provision in his own auto insurance policy as his injury arose from the use and operation of his motor vehicle. The focus on that case was therefore properly on the use of the claimant’s vehicle.
In contrast, in both Vytlingam and Herbison, the claimants sought insurance coverage from indemnification provisions in the applicable policies. In Herbison, the application of the Amos test was relatively straightforward. Section 239(1)(a) of the Insurance Act triggered coverage wherever an insured’s use, operation of the insured vehicle resulted in loss or damage being sustained by a third party. There was only one vehicle present at the time of Mr. Herbison’s injury and it was therefore clear that focus of the Amos test must be on the Wolfe vehicle.
Vytlingam presented a more challenging situation. Recovery was sought pursuant to OPCF 44R, which is triggered where an insured is injured and the wrongdoer has inadequate insurance coverage limits to compensate for the damages suffered; the insured’s insurer is obligated to provide additional coverage under the terms of that endorsement. The application of the Amos test was clouded by the fact that two vehicles are implicated in this scenario. The question was therefore whether the application of Amos should apply to the use of the wrongdoer’s vehicle to transport the boulders, or the use of Mr. Vytlingam’s vehicle travelling along the highway underpass.
The Court noted that OPCF 44R is an indemnification provision since recovery under the endorsement is tied to the wrongdoer’s policy limits. Although no-fault and indemnity provisions have distinct statutory bases, both are subject to interpretation as part of an insurance policy. Amos therefore governs the recovery under both kinds of provisions. The only modification in the application Amos test between the two types of provisions is that, where a no-fault provision is in issue, the focus is on the ownership, use and operation of the claimant’s vehicle since coverage in that case depends wholly on the claimant’s policy. Indemnification provisions however require a focus on the use, operation and ownership of the at-fault motorist’s vehicle as liability in those instances depends on the wrongdoer’s conduct and recovery is contingent on his or her policy limits.
Consequently, in both Vytlingam and Herbison, the proper application of the Amos analysis was to the use and operation of the tortfeasors’ vehicles in those cases.
(ii) The Purpose Component of the Amos Test Remains Broad
The rulings of the Court in both decisions also affirm the broad scope of the first stage of the Amos analysis. The “purpose test” in the first stage of the Amos analysis is designed to exclude only the most aberrant uses of a motor vehicle from insurance coverage. For example, Justice Binnie noted that an injury resulting from using a car as a diving platform would be excluded under Amos as an extraordinary use of a motor vehicle, but using an automobile for daredevil driving stunts (à la Evel Knievel) would in fact be covered. Such stunts, while not commonplace activity, involve driving which is an ordinary purpose for automobiles.
In Vytlingam, the insurer argued that because the wrongdoers had used their vehicle for the criminal purposes of getting weapons (i.e. the boulders) to a crime scene and this activity was not therefore an “ordinary and well known” purpose for which automobiles are used. The Court rejected the insurer’s contention and declined to find that the purpose test was defeated where criminal intention or conduct is involved in the operation of the motor vehicle. Transportation of materials for a criminal purpose is an ordinary use of a motor vehicle simply because transportation is precisely what motor vehicles are intended to do. The Court reasoned that, to exclude coverage where a wrongdoer’s use of a vehicle also runs afoul of the criminal law, such as occurs when a wrongdoer drives while intoxicated, would unreasonably deny innocent parties to indemnification for their injuries where fault is clearly connected to the wrongdoer’s actions as a motorist.
In Herbison, the purpose test was also satisfied on the simple basis that Mr. Wolfe was using his vehicle for transportation, which is its usual and ordinary use of an automobile. The fact that the Wolfe vehicle may also have been implicated in the commission of a tort was not enough to conclude that the vehicle was not being used for an ordinary purpose.
Consequently, the “purpose” component of the Amos analysis remains wide and when properly applied depends on the actual use of the vehicle, and not on the criminal intentions or tortious conduct of the at-fault driver.
(iii) The Amos Test Requires More than a “But For” Connection
The error made by the Court of Appeal in both the Herbison and Vytlingam cases was made in the application of the causation portion of the Amos test. The Supreme Court of Canada rejected the mere “but for” test that for causation the Court of Appeal found to be sufficient to trigger policy coverage. Rather, for coverage to be triggered, there must be an unbroken chain of causation linking the conduct of the wrongdoer as a motorist to the injuries in respect of which the claim is made.
In Vytlingam, the Court ruled that that no such unbroken chain existed between the activities of the wrongdoer as a motorist and the injuries suffered by Mr. Vytlingam. The wrongdoers may have used their vehicle to transport the rocks to the scene of the crime, but the use of the vehicle as a mode of transportation is not sufficient to trigger coverage under the policy. Rather, coverage is tied to the liability of the wrongdoer for the injury suffered and, as noted by the Court, not one ounce of civil or criminal liability attaches to merely transporting rocks in an automobile for whatever purpose. Liability stems from the separate and independent act of dropping the rocks. The car-related activities were clearly severable from the tortious and criminal activities and therefore coverage under OPCF 44R was not engaged.
Similarly, in Herbison the Court found that the majority of the Court of Appeal erred in finding that the broad language used in section 239(1)(a) to indemnify individuals for injuries arising “directly or indirectly” from the use, ownership or operation of a motor vehicle is satisfied wherever the wrongdoer’s motor vehicle in some manner contributes to or adds to the injury. Rather, some causal link between the motor vehicle and the injury must be found and it must constitute an unbroken link in the chain of causation. In this case, Mr. Wolfe engaged in a separate, distinct and intervening act of negligence in firing his rifle at far range, and not at a clearly visible target. An intervening act will not necessarily break the chain of causation required to trigger coverage under the automobile policy if that intervening act is not an abnormal incident of driving. In this case however, the source of Mr. Wolfe’s liability to Mr. Herbison was the independent, tortious act of firing his rifle which was not connected in any way to the insured vehicle and therefore coverage was not triggered in this instance.
Finally, while sympathetic to the tragic circumstances of both Mr. Herbison and Mr. Vytlingam in these cases, the Court cautioned against succumbing to the temptation of using automobile policies and the “deep pockets” of insurers to compensate innocent victims. The courts must not lose sight of the fact that they are interpreting and applying automobile policies and indemnity insurance is not inexhaustible. The reasonable expectations of both insurer and insured about the kinds of injuries that would fall within auto insurance must ultimately guide the courts in determining issues of coverage.
The judgments of the Court have re-affirmed that a common sense approach must be taken to construing the limits of insurance coverage, recognizing that the reasonable expectations of both insurers and their policyholders must be respected. In requiring a coverage test that requires a meaningful causative connection between the use of an insured vehicle and the injury or damage sustained by a claimant, the Court has provided a workable framework to ensure that claimants are indemnified for motor vehicle related accidents without transforming automobile insurance into comprehensive general liability coverage.
* Alan D’Silva is a Partner with Stikeman Elliott LLP, (416) 869-5204.
Ellen Snow is a lawyer with Stikeman Elliott LLP, (416) 869-5286.
1 2007 SCC 46.
2 [1995] 3 S.C.R. 205 (“Amos”).
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International Law
Cross-border High Anxiety? Offensive and Defensive Strategies in Transnational Litigation
Ontario Bar Association Annual Institute
5 February 2007
H. Scott Fairley* and Antonin I. Pribetic**
This article originally appeared in The Globetrotter, the OBA International Law Section Newsletter, Volume 11, No. 2, March/Mars 2007.
The cross-border case in Ontario courts is now a commonplace, no longer a rare occurrence. Principles applied by the courts to such cases—the realm of private international law or conflict of laws, a course some, but I suspect not all, of you may have elected to take, usually in your third year of law school—have also been transformed over the last 15 years or so. The materials which follow were presented at the 2007 Annual Institute in Toronto on 5 February 2007.
The Supreme Court of Canada’s legacy from its 1990 decision in Morguard through to its 2003 decision in Beals v. Saldanha, means that the vehicle for recognizing and enforcing a foreign judgment almost never reaches a trial situation; rather, it is a motion for summary judgment. Latterly, in the Pro-Swing case decided last year, the Supreme Court has opened up the field even further in the context of non-monetary relief. Incoming plaintiffs with judgments in hand from foreign courts have never had it so good.
Defensively speaking, things are a little less rosy, particularly when faced with recognition and enforcement proceedings in relation to litigation your client has either ignored (default judgment) or fought and lost abroad. But there is much more room to move creatively prior to trial in cases where your foreign client may be exposed to an originating process in Ontario; here we speak of things like motions to stay proceedings, and setting aside service.
To give you up-to-date insights from both perspectives, two seasoned civil litigators with 33 years of practice experience between them, have prepared excellent materials which merit publication in the pages of The Globetrotter with a view to reaching a wider audience. I commend them to you the reader as valuable reflections and careful observations from two members of the Bar who have clearly thought seriously about the ins and outs of transnational litigation.
* H. Scott Fairley is a partner at Theall Group LLP where he has a broadly based counsel and advisory practice in the fields of public and private international law, international business and trade, constitutional and administrative law, transnational arbitration and litigation. Scott can be reached at (416) 304-6185.
Offensive Strategies
1. Introduction
In Beals v. Saldanha,1 the Supreme Court of Canada revisited its landmark decision in Morguard v. De Savoye2 relating to the recognition and enforcement of a default judgment obtained in Florida against four Ontario defendants arising from a mistaken property lot description. In a six to three split decision, the Supreme Court of Canada majority held that the “real and substantial connection” test, which until then only applied to interprovincial judgments, should equally apply to the recognition and enforcement of foreign judgments.
Both the majority and dissenting judgments in Beals affirmed that once the foreign court’s jurisdiction is recognized, there are only three limited defences to an action for enforcement in Canada; namely:
(1) Fraud,
(2) Denial of natural justice (procedural fairness/due process), and
(3) Public Policy.
2. Pro Swing Inc. v. Elta Golf Inc.
In Pro Swing Inc. v. Elta Golf Inc.,3 the Supreme Court of Canada held, by a narrow 4-3 margin, that the foreign (Ohio) court’s consent decree and contempt order was unenforceable in Ontario. Both Madame Justice Deschamps, writing for the majority and Madame Chief Justice McLachlin for the dissenting minority, both agreed that the traditional common law rule restricting the recognition and enforcement of foreign orders to final money judgments should be revised.
However, Deschamps, J. suggested that such a change “must be accompanied by a judicial discretion enabling the domestic court to consider relevant factors so as to ensure that the orders do not disturb the structure and integrity of the Canadian legal system.” (at ¶ 15). The majority declined to clarify the scope or expand the existing defences of fraud, natural justice or public policy, or the finality requirement. (at ¶ 29)
The majority concluded that the consent decree and the contempt order were problematic and thus unenforceable, for the following reasons:
(i) the contempt order was quasi-criminal in nature and thus violated the rule against enforcing foreign penal law (at ¶’s 34-36, 49-51 and 62);
(ii) the wording of the consent decree was unclear vis-à-vis the intended territorial scope of the injunctive relief sought (at ¶ 25)
(iii) there were alternative judicial assistance mechanisms (particularly letters rogatory) which were more appropriate methods in lending judicial assistance to the Ohio proceedings (at ¶’s 42-44, 45-47); and
(iv) the public policy concerns over portions of the contempt order requiring disclosure of personal information that prima facie may be exempt from such disclosure based upon quasi-constitutional protections. (at ¶’s 59-60)
McLachlin, C.J. in dissent, disagreed that the contempt order was penal in nature and held that the civil contempt order should be enforceable.
In the learned Chief Justice’s view, Elta Golf conceded that the general requirements for enforcement were met. The consent decree and the portions of the contempt order the motions judge held to be enforceable in Ontario were final, complete, clear, unambiguous and required no further elaboration. The hypothetical possibility of the need for future court supervision should not have precluded the recognition of a foreign order. Accordingly, if the offending parts of the contempt order could not be enforced for public policy reasons, they were, nevertheless, severable. (at ¶’s 120-121 per McLachlin, C.J.)
3. The Five “C’s”: Coordination, Connection, Contradiction, Confirmation and Collection
1. Coordination - Plaintiff counsel must obtain all necessary information from foreign counsel and coordinate a foreign judgment enforcement strategy:
- carefully review both the foreign judgment and endorsement/written reasons to identify potential problems for Ontario court’s interpretation and ability to enforce locally - if injunctive relief is included, consider whether the judgment contemplates “extra-territorial and/or worldwide effect”;
- if a U.K. monetary judgment - consider a REJUKA application;4
- if a U.S. federal or state judgment - research Canadian caselaw for similar decisions recognizing American judgments.
2. Connection - it is crucial to establish jurisdiction simpliciter of the foreign (originating) court by identifying factors for “real and substantial connection”. Following Morguard, voluntary attornment by the defendant no longer remains a precondition to commence foreign enforcement proceedings in Canada. Thus, a foreign litigant is only required to show:
- that the foreign judgment is final (must be final and conclusive in the originating jurisdiction in order to be considered enforceable by Canadian courts), based upon two factors: (1) all avenues of appeal are spent, and (2) that the foreign court has no further power to rescind or vary its own decision (res judicata);
- that the foreign judgment was “issued by a court acting through fair process and with properly restrained jurisdiction;”
- there exists a “real and substantial connection” between:
• the issue in the action and the location where the action is commenced;
• the damages suffered and the jurisdiction; and
• the defendant and the originating forum; and
• the defendant fails to raise a recognized defence. (i.e. fraud, natural justice or public policy).
Note: The US Supreme Court in Sinochem v. Malaysia Int’l Shipping, No. 06-102 (heard on Jan. 10/07-reserved) appears poised to hold that a district court may dismiss a suit on forum non conveniens grounds before determining conclusively that it has subject-matter or personal jurisdiction.
3. Contradiction - “The best offence is proving there’s no defence”
The traditional common law avenues of presence-based jurisdiction and/or consent-based jurisdiction (e.g. attornment, exclusive jurisdiction/forum selection clause) remain.5 Plaintiff’s counsel must anticipate all potential defences - fraud (extrinsic), natural justice (procedural fairness, “opportunity to be heard”), and public policy (foreign judicial bias or political/institutional corruption).
Compare Oakwell Engineering Ltd. v. Enernorth Industries Inc.,6 with State Bank of India v. Navaratna7 two recent Ontario decisions dealing with alleged corruption/bias in the Singapore legal/judicial system, both of which highlight the substantive, procedural and evidentiary problems inherent in the traditional impeachment defences and the potential expansion of existing defences or creation of a new defence (duress).
In Beals at 442, Major, J. held:
Unusual situations may arise that might require the creation of a new defence to the enforcement of a foreign judgment. However, “should the evolution of private international law require the creation of a new defence, the courts will need to ensure that any new defences continue to be narrow in scope, address specific facts and raise issues not covered by the existing defences.” [original emphasis]
Non-Monetary Judgments/Equitable Orders
Certainty - Traditionally, the final judgment also had to be for a certain or definite sum of money, easily ascertainable or calculable (e.g. in the form of liquidated damages).8
(i) Injunctive Remedies - Mareva, Anton Piller, Norwich, interim preservation (Rule 45-type) orders may now all be available to foreign litigants.9 While, finality no longer appears a requirement,10 enforcement of the foreign interlocutory order must address the following considerations raised in Pro Swing v. Elta Golf:11
- Are the terms of the order clear and specific enough to ensure that the defendant will know what is expected from him or her?
- Is the order limited in its scope and did the originating court retain the power to issue further orders?
- Is the enforcement the least burdensome remedy for the Canadian justice system?
- Is the Canadian litigant exposed to unforeseen obligations?
- Are any third parties affected by the order?
- Will the use of judicial resources be consistent with what would be allowed for domestic litigants?12
(ii) Contempt Orders - Don’t bother. Deschamps, J. writing for the majority in Pro Swing held that contempt orders are quasi-criminal in nature and thus violated the rule against enforcing foreign penal law;13 There were also public policy concerns over portions of the contempt order requiring disclosure of personal information that prima facie may be exempt from such disclosure based upon quasi-constitutional protections.14
(iii) State Immunity - Canada’s State Immunity Act,15 provides that a foreign state cannot be subject to the jurisdiction of Canadian courts except for specific circumstances: where the damage occurred as part of the commercial activity of the state (section 5), or where the foreign state is responsible for death or personal injury that occurred in Canada or damage of loss of property that occurred in Canada (section 6). These exceptions reflect existing customary international law and the draft United Nations (U.N.) Convention on Jurisdictional Immunities of States and Their Property.16 17 18
(iv) Cross-border insolvency - Consider the jurisdictional issues relating to the bankruptcy/insolvency proceedings, in light of the nature of the debt (i.e. simple contract debt, goods sold and delivered, etc.). Are there parallel insolvency proceedings in the foreign jurisdiction? Is there a potential for cross-border judicial cooperation? Is the trustee instituting the creditors’ claim, or has the client obtained a s.38 Bankruptcy and Insolvency Act order? Does the original contract contain a forum selection/exclusive jurisdiction and/or choice of law clause?19
(v) “Anti-suit” Injunctions/Parallel Proceedings - An anti-suit injunction is a form of equitable relief ordered by court X enjoining one of the parties within court X’s personal jurisdiction from participating in pending or parallel proceedings in court Y. The threat of sanctions,particularly contempt orders, is a powerful incentive; however, anti-suit injunctions are inapplicable at the post-judgment stage. According to the Supreme Court of Canada decision in Amchem, if a foreign court conforms to the Canadian approach of properly restrained jurisdiction, a Canadian court should not interfere by way of an anti-suit injunction.20
(vi) Letters Rogatory/Letters of Request - The Supreme Court of Canada in Pro Swing considered this to be the preferred procedural route.21 An Ontario court will only recognize a letter of request if the applicant can establish that the specified deponent:
(1) has some relevant knowledge to the issues in the foreign litigation;
(2) has exclusive possession of the required information
and
(3) the evidence is not otherwise obtainable.22
vii) Cross-border class action litigation – This is a complicated and developing area. The adequacy of notice to either opt-in or opt-out of the class proceedings or global settlement appears to be the prevailing consideration.23
4. Confirmation
Consider whether instructing foreign counsel has confirmed the foreign judgment in other domestic jurisdictions, if only to lend greater judicial weight to the prospective Ontario judgment proceedings.
If the foreign judgment is a confirmed international arbitration award, the foreign client/judgment creditor may alternatively proceed by way of application to enforce the foreign judgment under Rule 14.05(2) of the Rules of Civil Procedure.24
5. Collection
The ability to collect or realize on any Ontario domesticated foreign judgment should always be the top priority when accepting a transnational retainer or engagement.
Presumably, the foreign client or foreign instructing counsel already anticipates that the judgment debtor has exigible assets in Ontario.
Rule 60 - Enforcement Mechanisms
(a) writ of seizure and sale under rule 60.07;
(b) garnishment under rule 60.08;
(c) a writ of sequestration under rule 60.09; and
(d) the appointment of a receiver.
Recent International Developments
Saskatchewan has recently proclaimed the Enforcement of Foreign Judgments Act,25 modeled after the “Uniform Enforcement of Foreign Judgments Act” drafted by the Uniform Law Conference of Canada. Other provinces, including Ontario may soon follow.
The Hague Choice of Court Convention was signed on June 30th, 2005 at the Twentieth Session of the Hague Conference on Private International Law. The American Bar Association has strongly endorsed this multilateral convention. There are a number of reasons for Canada to adopt the Hague Choice of Court Convention, including:
(1) The Uniform Law Conference of Canada’s “Uniform Enforcement of Foreign Judgments Act” was drafted in the background of Canada’s participation at the Diplomatic Conferences and Working Groups at the Hague Conference on Private International Law and thus reflects the principles enshrined in the Hague Choice of Court Convention;
(2) it will provide greater certainty for Canadian businesses involved in international transactions;
(3) it will offer a viable alternative to arbitration as a method of dispute resolution;
(4) it will strengthen functional reciprocity between Contracting States on a multilateral level;
(5) it will codify the private international law principles of comity, reciprocity, good faith and order and fairness, espoused by most common law courts, including the Supreme Court of Canada.26
Concluding Remarks
Jurisdiction, choice of forum and law, and the potential for fast-moving assets, are threshold issues. Maintaining strong lines of communication with instructing foreign counsel; establishing a sound transnational litigation strategy; and anticipating potential substantive defences and defensive strategies (including parallel proceedings, anti-suit injunctions) will pay significant dividends to your clients seeking recognition and enforcement of foreign judgments in Canada.
** Antonin I. Pribetic is Litigation Counsel at Steinberg Morton Hope & Israel LLP where his practice focuses on corporate-commercial, civil and transnational litigation. Antonin can be reached at (416) 225-2777 (ext. 237).
1 Beals v. Saldanha [2003] 3 S.C.R. 416, (2003) 234 D.L.R. (4th) 1, (2003) 314 N.R. 209, (2003) J.E. 2004-127, (2003) 182 O.A.C. 201, (2003) 39 B.L.R. (3d) 1, (2003) 39 C.P.C. (5th) 1, (2003) 113 C.R.R. (2d) 189, (2003) 127 A.C.W.S. (3d) 648 (S.C.C.)
2 Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077, (1990) 76 D.L.R. (4th) 256, (1990) 122 N.R. 81, [1991] 2 W.W.R. 217, (1990) J.E. 91-123, (1990) 52 B.C.L.R. (2d) 160, (1990) 46 C.P.C. (2d) 1, (1990) 15 R.P.R. (2d) 1, (1990) 24 A.C.W.S. (3d) 478 (S.C.C.)
3 Pro Swing Inc. v. Elta Golf Inc [2006] S.C.J. No. 52, 2006 SCC 52 (S.C.C.), aff’g (2004) 71 O.R. (3d) 566 (Ont. C.A.), rev’g (2003) 68 O.R. (3d) 443, [2003] O.T.C. 1146, (2003) 30 C.P.R. (4th) 165, (2003) 128 A.C.W.S. (3d) 52 (Ont. S.C.J.) per Pepall, J.
4 Reciprocal Enforcement of Judgments (U.K.) Act, R.S.O. 1990, c. R-6 [“REJUKA”]. REJUKA is the Ontario statute that brings into force in Ontario the Convention between Canada and the United Kingdom for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, 1984. It has been implemented in each of the common law Canadian provinces and territories. See Canada-United Kingdom Civil and Commercial Judgments Convention Act, R.S.C. 1985, c.C.-30.
5 Shekhdar v. K&M Engineering and Consulting Corp. (available online (CANLII) at: http://www.canlii.org/on/cas/onca/2006/2006onca10399.html) [2006] O.J. No. 2120, (2006) 148 A.C.W.S. (3d) 568 (Ont. C.A.), rev’g [2004] O.J. No. 2548, (2004) 71 O.R. (3d) 475, (2004) 131 A.C.W.S. (3d) 638 (Ont. S.C.J.)
6 Oakwell Engineering Engineering Ltd. v. Enernorth Industries Inc., [2006] O.J. No. 2289 (Ont. C.A.) per Laskin, MacFarland and LaForme JJ.A., aff’g (2005) 76 O.R. (3d) 528, [2005] O.T.C. 534, (2005) 7 B.L.R. (4th) 256, (2005) 140 A.C.W.S. (3d) 70, (2005) 141 A.C.W.S. (3d) 208, 2005 CarswellOnt 2629 (Ont. S.C.J.) per Day, J.; Application for leave to appeal dismissed with costs (January 18, 2007) [2006] S.C.C.A. No. 343 (S.C.C.)
7 State Bank of India v. Kothari Navaratna and Sayar Kothari, [2006] O.J. No. 1125, per H.E. Sachs J., (March 23, 2006-unreported)
8 See also, Society of Lloyd’s v. Meinzer (2001), 55 O.R. (3d) 688, [2001] O.J. No. 3403 (C.A.) and United States of America v. Levy (2002) 1 C.P.C. (6th) 386 (Ont. S.C.J.) per C. Campbell, J.; at ¶ 17; aff’d [2003] O.J. No. 56 (Ont. C.A.) per Carthy, Laskin and Feldman JJ.A.;
9 Molson Coors Brewing Company v. Miller Brewing Company, 2006 CanLII 35628 (Ont. S.C.J.) [“Molson Coors”] Cf. United States of America v. Yemec (2003) 67 O.R. (3d) 394, (2003) 233 D.L.R. (4th) 169, [2003] O.T.C. 877, (2003) 125 A.C.W.S. (3d) 1060 (Ont. S.C.J.), aff’d (2005) 75 O.R. (3d) 52, (2005) 196 O.A.C. 163, (2005) 12 C.P.C. (6th) 318, (2005) 131 C.R.R. (2d) 312, (2005) 138 A.C.W.S. (3d) 156, 2005 CarswellOnt 1164 (Ont. Div. Ct.) per Carnwath, Jarvis and Swinton JJ. See also Khan Resources Inc. v. W M Mining Co. (2006) 79 O.R. (3d) 411 (Ont. C.A.) per, Borins, Feldman and Armstrong JJ.A.,
10 See Grace Canada Inc. (Re) [2006] O.J. No. 3643 (Ont. S.C.J. –CL) where Morawetz, J. allowed the Manitoba plaintiff class representative’s motion for recognition of a Manitoba court order declaring no conflict of interest in her counsel acting in the Ontario CCAA proceedings. Notwithstanding that the Manitoba order was non-monetary and interlocutory, it was appropriate for Ontario court to recognize it as the Manitoba order was clear and certain and its recognition presented little risk of prejudice to the defendant.
11 Pro Swing, ¶’s 31-32.
12 Id.., at ¶ 25 per Deschamps, J.
13 Pro Swing at ¶’s 34-36, 49-51 and 62 per Deschamps, J. Cf. McLachlin, C.J., at ¶’s 105-109.
14 Id., at ¶’s 59-60 per Deschamps, J.
15 State Immunity Act, 1985 R.S.C., S.18.
16 UNITED NATIONS (U.N.) CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES AND THEIR PROPERTY, RESOLUTION A/RES/59/38 adopted by the United Nations General Assembly, Fifty-ninth session (December 2, 2004). For a detailed analysis of the U.N. Convention on Jurisdictional Immunities of States and Their Property, see David Stewart, ”Current Developments, The UN Convention on Jurisdictional Immunities of States and Their Property” American Journal of International Law (AJIL), 194 (January 2005).
17 Bouzari v. Republic of Iran (2004) 71 O.R. (3d) 675 at 690, (2004) 243 D.L.R. (4th) 406, (2004) 122 C.R.R. (2d) 26, (2004) 132 A.C.W.S. (3d) 275 (Ont. C.A.)
18 Crown Resources Corp. S.A. v. National Iranian Drilling Co., (2005) 142 A.C.W.S. (3d) 421 (Ont. S.C.J.) per Greer, J.; varied [2006] O.J. No. 3345 (Ont. C.A.) per Labrosse, Laskin and Armstrong JJ.A. Application for leave to appeal filed October 23, 2006, [2006] S.C.C.A. No. 412 (S.C.C.)
19 Cavell Insurance Co. (Re), [2006] O.J. No. 1998, LCNF/ 2006-052 (Ont. C.A.) per M. Rosenberg, S.T. Goudge and J.M. Simmons JJ.A., May 23, 2006. See also, Grace Canada Inc. (Re) [2006] O.J. No. 3643 (Ont. S.C.J. –CL) where Morawetz, J. allowed the Manitoba plaintiff class representative’s motion for recognition of a Manitoba court order declaring no conflict of interest in her counsel acting in the Ontario CCAA proceedings. Notwithstanding that the Manitoba order was non-monetary and interlocutory, it was appropriate for Ontario court to recognize it as the Manitoba order was clear and certain and its recognition presented little risk of prejudice to the defendant. Cf. Buth-na-bodhiaga Inc. (c.o.b. Body Shop) v. Lambert, (2002) 60 O.R.3d 787 (Ont. C.A.)
20 Amchem Products Inc. v. British Columbia (Workers’ Compensation Board) [1993] 1 S.C.R. 897, 102 D.L.R (4th) 96; Molson Coors, supra note 10. See also, Canadian Standards Assn. (c.o.b. CSA International) v. Solid Applied Technologies Ltd. [2007] O.J. No. 10 (Court File No. 06-CV-317771PD) (Ont.S.C.J.) where Morawetz J., held that in view of the outstanding issue of jurisdiction arising out of a forum selection clause was before the District Court of Tel-Aviv, it was premature for the Ontario court to consider the issuance of an anti-suit injunction. However, in the event that the District Court of Tel-Aviv decided to assume jurisdiction, or issued orders that impacted directly or indirectly on the Ontario court’s decision, the applicant, CSA, was at liberty to reapply for an anti-suit injunction.
21 Id., at ¶’s 42-44, 45-47 per Deschamps, J.
22 Id., at ¶’s 25, 56-57 and 62 per Deschamps, J. See also, Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, [2004] 2 S.C.R. 427 (S.C.C.). Cf. Re Presbyterian Church of Sudan (Re) [2006] O.J. No. 3822, (2006) 151 A.C.W.S. (3d) 571 (Ont. C.A.), where the Court of Appeal for Ontario held that a letter of request from the United States District Court could not be enforced in Ontario. Current and former residents of Sudan sued Talisman Energy Inc, a Canadian company, in the United States for acts of genocide, torture and other human rights violations, relying on the Alien Tort Claims Act for jurisdiction. Despite the Canadian government’s formal diplomatic expression of its concerns over the litigation proceeding in the United States, the court held that the letter of request was not contrary to Canadian public policy. However, the court refused the request on the ground that the supporting evidence, in the form of an affidavit from New York counsel, was insufficient to establish that the evidence sought was relevant, necessary and not otherwise obtainable. The court viewed the affidavit as containing only “bald assertions” on the essential elements of the test for effecting a foreign letter of request.
23 Currie v. McDonald’s Restaurants of Canada Ltd.; Parsons v. McDonald’s Restaurants of Canada Ltd., (2005) 74 O.R. (3d) 321, (2005) 250 D.L.R. (4th) 224, (2005) (Ont. C.A.) per R.J. Sharpe, R.P. Armstrong and R.A. Blair JJ.A., aff’g (2004) 70 O.R. (3d) 53 (S.C.J.)
24 Schreter v. Gasmac Inc. [1992] O.J. No. 257, 89 D.L.R. (4th) 365 (Ont. Gen. Div.) per Feldman, J. (as she then was); additional reasons at [1002] O.J. No. 2507, 89 D.L.R. (4th) 380 (Ont. Gen. Div.) which held that a confirmed arbitral award may be enforced under the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on June 21, 1985 (the “New York Convention”) Therefore, an application brought under the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 , s.11 and Sch. (Art. 35 et seq.) is likely the most effective litigation approach.
25 Enforcement of Foreign Judgments Act, 2005 c.E-9.121 (effective April 19, 2006)
26 CONVENTION OF 30 JUNE 2005 ON CHOICE OF COURT AGREEMENTS, NO. 37, concluded on June 30th, 2005 at the Twentieth Session of the Hague Conference on Private International Law.
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Labour Relations
Adding Another Mouth to Feed: The New Family Day Holiday1
William LeMay*
 THis article originally appeared in the OBA Labour Relations Section Newsletter, Volume 10, No. 2, December/Décembre 2007.
In order to break up the bleak midwinter that we, as Ontarians, live through every year, the Provincial government has introduced a new statutory holiday, called “Family Day”. This holiday will be observed on the third Monday in February every year. It has been added to the regulations that were made under the Employment Standards Act, 2000,2 as well as the Retail Business Holidays Act. The reason for adding this holiday was expressed by the Government in the following way:3
There is nothing more valuable to families than time together. And yet it seems tougher than ever to find, with so many of us living busy lives. That’s why, in the first year of our next mandate, we will create a new long weekend in February.
Although the establishment of this new holiday was motivated by a desire to provide us with more time for our families, it was not discussed in any great detail in the election campaign. Specifically, the costs associated with the change in the legislation were not discussed. This new statutory holiday, the first since Boxing Day was introduced in 1989, comes with a significant cost to employers. For example, the City of Toronto reports that this new holiday will cost it approximately $2.3 million dollars.4 And that is the cost for just one employer. The total cost to businesses across the province has been estimated at between half a billion and two billion dollars.5
The debate over the cost of this new holiday to the economy is now academic. However, individual employers will still have to grapple with the cost of this new holiday to their organizations. This raises the following two interesting legal questions:
- Are employers required to extend this holiday to their employees?
- Does “Heritage Day” mean the same thing as “Family Day”?
Although actually answering these questions in a definitive way will take some judicial debate and decision making, I will set out some of the arguments and issues relating to both of these questions.
Question 1 - Are Employers Required to Give Employees Family Day as a Holiday?
The answer to this question is not necessarily. While it will depend on each unique employment relationship, and each unique collective agreement (or each individual employment contract), the Employment Standards Act, 2000 (“ESA”) states that, where an employment agreement and the ESA differ, the one that provides a greater right or benefit will prevail. As noted by Arbitrator Rayner:6
the fact that the working population of Ontario has received the benefit of another statutory holiday by government action does not lead to the inexorable conclusion that the collective agreement between the parties has to be varied when the agreement is superior to the legislation from the point of view of the employee.
In other words, employers are not obligated to provide Family Day to their employees if they otherwise provide a “greater right or benefit”. The question, of course, is what does that mean? The ESA, of course, prohibits contracting out.7 However, in the current ESA, section 5(2) states:
If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.
This section replaced older sections, which stated:
5(1) Where terms or conditions of employment in a collective agreement as defined in the Labour Relations Act confer a higher remuneration in money or a greater right or benefit for an employee respecting holidays than the provisions of Part VII, the terms or conditions of employment shall prevail.
5(2) Where the Director finds that terms or conditions of employment in a contract of employment, oral or written, express or implied, that are not in a collective agreement confer a higher remuneration in money or a greater right or benefit for an employee respecting holidays than the provisions of Part VII, the terms or conditions of employment shall prevail. R.S.O. 1980, c. 137, s. 5.
The earlier sections were discussed in the context of holidays by the Divisional Court.8 In that decision, the Court was dealing with a collective agreement that did not provide for a substitute day off if Christmas, Boxing Day or New Year’s Day fell on a weekend. Under the strict terms of the ESA as it existed at that time, a substitute day was required. However, the collective agreement also provided that every employee was entitled to be off with pay between Christmas and New Years.
The Divisional Court found that this language did not violate the ESA. The Court endorsed a “package” approach to determining whether a greater right or benefit existed under a collective agreement. The Court held that the parties could contract out of the ESA if the entirety of the terms relating to holidays provided employees a greater right or benefit. For example, a greater right or benefit was found to exist where a collective agreement provided 11 holidays and increased premium pay if an employee was required to work on the holiday.9
There are subtle differences between the old “greater right or benefit” sections and the new section that may be relevant to individual cases.10 Generally, however, the new section will be applied in a similar way to the old section.11 Therefore, there is no blanket requirement that employers will be required to extend Family Day to their employees. Its mandatory application will depend on the individual terms of each collective agreement, or each individual employment contract.
Question 2 - What to Do with Heritage Day?
In the 1990’s, there was some considerable discussion about adding “Heritage Day” as a statutory holiday. This holiday would also have been in February sometime. In fact, as noted on the Ontario Heritage Trust website,Heritage Day is the third Monday in February, and its purpose is to “c | |
