| Volume 6, No. 2 - June/Juin 2008 |
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 Volume 6, No. 2 - June/Juin 2008
Appeal Court Judges, Advocacy Lawyer Speak on Diversity Issues, Rule of Law, Accessibility and Disability Rights at ALOC Conference Litigating in the Public Sector: Cases, Challenges and Values Building New Avenues for Alternative Dispute Resolution Privacy and Video Surveillance under FIPPA and MFIPPA Federal Crackdown Targets Bid Rigging and Conspiracy Scams SECTION NEWS
Public Sector Lawyers is published by the Public Sector Lawyers' Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment. |
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Appeal Court Judges, Advocacy Lawyer Speak on Diversity Issues, Rule of Law, Accessibility and Disability Rights at ALOC Conference
Deputy Attorney General Murray Segal Presented John Twohig with the Carol Creighton Award Abi Lewis*
Over 360 civil lawyers from Ontario ministries and agencies gathered in the Blue Mountain Conference Centre, Collingwood, Ontario, for their yearly conference on May 7 – 9, 2008, discussing a wide range of topics including administrative, constitutional, civil, intellectual property and regulatory law, as well as mediation advocacy, negotiation and legislative drafting. The continuing education program sponsored by the Association of Law Officers of the Crown and the Ontario government featured about 82 speakers who shared their perspectives on the practice of law from the bench and the bar and the presentation of the Carol Creighton Award. On the first day of the conference, Justice Russell Juriansz of the Ontario Court of Appeal spoke on diversity issues in a multicultural society and his experience practising law. Born in India, he grew up in Toronto experiencing the life of a child of immigrant parents. He had friends from different cultural backgrounds in the neighbourhood and learned to play hockey. Justice Juriansz also spoke about his student days at the Osgoode Law School in the 1970s, drawing examples from his experience to illustrate the issue of diversity and law. He delved at length into his legal career that spanned the federal public service (working at the Canadian Human Rights Commission), private practice and now the bench in discussing what diversity means in law, its challenges and contributions to the advancement of law. Diversity, he opined, is a difficult subject, noting that people don’t even agree on the language of the term. He pointed to how the description of non-whites has evolved from the term “minority” to “visible minority” and now “racialized people”. Although Justice Juriansz is the first person of South Asian origin to be appointed to the bench in 1988, he does not see his background as a draw back; instead looking at it in a positive way. According to him, his background has proven to be an asset in his work on the bench. He said that diversity issues come up frequently in the courts because of complex subjects that lawyers and judges have to deal with and the multicultural nature of Canadian society. Pointing out that he does not represent anyone on the bench and the Ontario Court of Appeal, which is an impartial judicial forum, is not a representative assembly, Justice Juriansz nevertheless said that he, like other judges, is a product of his life experience. He added that judges are human too and cannot separate their life experience from their professional qualities. Justice Juriansz said that like his colleagues in the Court of Appeal, he too brings his perspectives, shaped by the totality of his experience, to bear on his work. He concluded that with different perspectives, he and his colleagues make wiser and better judgments. On the second day of the conference, Justice Gloria Epstein of the Ontario Court of Appeal discussed the role of government lawyers in upholding the rule of law. She spoke against the background of a landmark case, M. v. H, in which she was the trial judge. M. v. H. was the case of two women whose relationship broke down and they decided to separate. One sued the other for spousal support and in the process challenged the constitutionality of the then section 29 of Ontario’s Family Law Act. The Ontario Legislature passed amendments to the legislation in 1999 to uphold the rights of same-sex couples. Justice Epstein said the legal proceedings took place at a time of heightened political debate on the rights of same-sex couples. She said judges are informed by the law and facts in adjudicating matters, noting that the bench and the bar are inextricably connected by a commitment to the rule of law. She told her audience that the legal proceedings at the trial court, the Court of Appeal and the Supreme Court of Canada demonstrated that the rule of law was respected, notwithstanding the political and public backlash. Justice Epstein said government lawyers have a role to play in protecting the rule of law, stressing the need to maintain confidence in the justice system. She emphasized that it is important to uphold the rule of law in a properly functioning democracy. She also used the occasion to talk about an initiative she’s leading, the McMurtry Garden of Justice. According to her, the project was conceived about 10 years ago in honour of the former Ontario Chief Justice Roy McMurtry. The garden, she said, would be a place of celebration and reflection of legal process and rights, noting that when the garden is completed, it would have between eight and 10 sculptures representing the values of law such as the Charter. David Lepofsky, General Counsel, Crown Law Office – Criminal, Ministry of the Attorney General spoke about the reality that disabled people face in dealing with the courts. These include lack of documents produced in Braille, lack of public announcements and accessibility to court sites. According to Mr. Lepofsky, everyone, if they live long enough, will eventually experience some form of disability, noting that in society, there are people with disabilities and people with disabilities in waiting. The question, he said, is what can society do to ensure full participation of the disabled people in the justice system. Saying that we should aim for a barrier-free society, he explained that nobody benefits, but a lot will suffer as a result of barriers in our built human environment. To discuss the issue of accessibility and disability rights, he talked about the work of the Courts’ Disabilities Committee established by the former Ontario Chief Justice McMurtry in 2005 and led by Justice Karen Weiler of the Court of Appeal. The advisory committee, drawn from the bench, bar and the provincial government, was asked to develop recommendations to make Ontario’s court system more accessible for persons with mental, physical or sensory disabilities. The Accessibility for Ontarians with Disabilities Act, 2005 requires the province, including its court system to become fully accessible before January 1, 2025. Mr. Lepofsky said the survey carried out by the committee showed that many barriers impede access to the courts by persons with physical, mental or sensory disabilities. The committee identified them as attitudinal, communication, informational, physical and sensory barriers. To address these barriers, the Weiler-led committee in its report recommends that:
He said that the committee found that there was no one player in charge of making the courts accessible to the disabled persons. To make the court system fully accessible to disabled persons, Mr. Lepofsky said the provincial government, private sector lawyers and the judiciary have to work as a team to implement the committee’s recommendations. According to him, the government already sees the committee’s recommendations in a positive light. He enjoined government lawyers to subscribe to the policy goal of an accessible court system and be involved in devising strategies for education and training in promoting disability rights. Another highlight of the conference was the presentation of the Carol Creighton Award. Deputy Attorney General Murray Segal announced that John Twohig, Senior Counsel, Policy Division, Ministry of the Attorney General is this year’s recipient of the award. Mr. Segal, who presented Mr. Twohig with a plaque to mark the occasion, spoke about the illustrious career of Mr. Twohig as a public lawyer, his contributions to the Civil Rules Committee, leadership role at the Uniform Law Conference of Canada, and significant experience in regulatory law spanning more than two decades.
ALOC President Nick Hedley also gave Mr. Twohig two books on behalf of ALOC.
Mr. Twohig, who thanked ALOC for the recognition and honour, spoke briefly about the contributions that government lawyers make to the cause of justice. When asked how he felt about receiving the award, Mr. Twohig said: "I knew Carol Creighton and know what an outstanding dedicated lawyer and civil servant she was. I was humbled to see the number of people that wrote in to support the nomination. It's always dangerous to single people out, but I was most touched by the letters from the young lawyers. I think it's important to mentor the next generation.” The Carol Creighton Award recognizes a lawyer's exceptional contribution to the Ontario Public Service and to public law, either for specific contributions to public law, or over their entire career. Past recipients of the award were the following:
ALOC President, Mr. Hedley, thanked all those who contributed to the success of this year’s conference including the speakers and members of the planning committee. ALOC's annual educational conferences have been an important component in the continuing legal education of government civil lawyers since ALOC's first educational conference was held in March 1990. Effective 2006, the annual educational conference was renamed the ALOC/Government of Ontario Educational Conference. The main goal of the conference is to enhance the knowledge and skills of ALOC members by providing seminars and workshops on topics that are relevant to Crown Counsel. The conference provides opportunities for ALOC members to develop contacts and build relationships with each other through networking and team building activities. * Abi Lewis, Counsel, Ministry of the Attorney General – Policy Division, (416) 326-2513. |
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Administrative Monetary Penalties and Criminal Offences
The Challenge of Maintaining Clear Boundaries
Arghavan Gerami*
Administrative Monetary Penalties (AMPs) have existed for some time in Canadian legislation, but in recent years have become quite popular in the international regulatory field, including among Canadian regulators. AMPs have been employed in legislation such as the Customs Act, the Aeronautics Act, the Transportation Act, the Marine Transportation Security Act, the Income Tax Act, and a number of environmental protection acts.[1] Their popularity is in large part due to their perceived efficiency, simplicity, flexibility and timeliness, allowing regulators to achieve compliance at reduced costs. Though AMPs are considered an attractive enforcement tool for regulators, clear parameters must be set out in legislation to ensure they are used appropriately to avoid an overlap between AMPs and criminal offences. The benefits gained by employing AMPs are only justifiable up to a certain point; if the balance tilts too far in the direction of criminal law, necessary procedural safeguards must be put in place and important constitutional and due process issues must be taken into consideration. The first section of this paper will take a look at AMPs and their purpose, setting out some of the common justifications offered by regulators for reliance on this regulatory tool. It will then discuss both the challenge and the importance of maintaining a proper boundary around AMPs, and preserving a clear distinction between civil and criminal regulation (between AMPs and criminal offences). 1. Administrative Monetary Penalties (AMPs): What is the Attraction? Administrative monetary penalties are a form of civil penalty imposed by an administrative body or a regulator against individuals or corporations for failure to comply with a specific legal requirement. AMPs are “negotiated or imposed in the shadow of the formal legal system”; they are often defined in legislation or regulations, but are imposed without intervention by a court or a tribunal.[2] The person or corporation must pay the prescribed amount of penalty, but there is usually the possibility of appealing to the tribunal or an impartial adjudicator with expertise in the particular area. AMPs have been described as the “teeth of the regulatory regime” because they can be quickly imposed in a wide range of areas and covering a spectrum of interests, including environmental and consumer protection.[3] The fines imposed can have a preventative, deterrent or prospective purpose, but are not supposed to be punitive,[4] in order to avoid infringement in the sphere of criminal law. It has been recognized that AMPs are most useful when the offence in question is minor, there is no serious risk of harm and the moral blameworthiness does not warrant a quasi-criminal charge.[5] Regulators also like to use AMPs because they are more attractive when compared to the expense and the inefficiency of regulatory trials coupled with its more onerous burden of proof. There is an opportunity to address the risk of harm without being exposed to the uncertainty of a criminal prosecution, while also allowing the defendant to avoid the social stigma associated with a criminal offence. In addition, AMPs provide regulators with an alternative means of achieving cooperation and compliance, while also working on fostering dialogue and education.[6] Finally, AMPs allow regulators the flexibility to customize the penalty and offer violators an incentive to negotiate even after the contravention has been detected.[7]
2. Maintaining Clear Boundaries On a broad level, the distinction between criminal and civil penalties is based on the different purpose associated with each area of law. Traditionally, criminal law has concentrated on the immorality of the act, the blameworthiness of the defendant, and the punishment of the wrongful activity (including through imprisonment), while civil law has been more focused on compensation for damages caused through negligent omission, rather than a positive or intentional act. Civil penalties also tend to be less severe and in the case of AMPs are accompanied by lower procedural safeguards, whereas the stigma associated with criminal law and its burdensome and sometime destructive consequences have been recognized to merit important constitutional protections. With respect to criminal offences, prosecutors must meet the high burden of proof required by the “beyond a reasonable doubt” standard (proof of intent and actus reus). On the other hand, under civil schemes, regulators are subject to the “balance of probabilities” standard. However, in recent years, the increasing reliance on AMPs by regulators has raised concerns with respect to maintaining a principled distinction between criminal offences and civil and administrative penalties. In particular, as AMPs have increased in magnitude, they have started to look more like quasi-criminal offences in the criminal model[8], potentially distorting the underlying purpose of employing AMPs in the first place. After all, the advantages associated with AMPs are justifiable in so far as they serve their intended “preventative and protective”[9] purpose and do not cross into the realm of punishment. Of course, this requires a fine balance be maintained to preserve the civil nature of AMPs and ensure they do not compromise their utility by being interpreted as similar to criminal offences, which will then necessitate the extension of fundamental Charter rights (normally afforded under criminal law). Part of the challenge here is to remain keenly aware of the potential to go down a “slippery slope”;[10] one may start from a “preventative and protective” deterrent purpose, but nonetheless end up with an overlap into the offence model and the punitive sphere of criminal law. As argued by Archibald et. al., given the history of general deterrence in criminal justice policy and the fact that “much of criminal law could be subsumed under protection and prevention,” one cannot stretch the “protective and preventative rubric” too far[11]. In particular, if the size of the penalty is sufficiently and disproportionately large (for example, in the millions of dollars), it becomes difficult to view it as anything other than punitive, leading one to conclude that deterrence is being achieved through punishment. Once again, the danger here is the potential of an inevitable merger between criminal and administrative law, “while fundamental procedural differences may be lost in the shuffle”.[12] In this context, it is important to keep in mind that the particular label attached to the penalty should not be the determining factor in deciding whether in essence it constitutes an AMP or monetary punishment imposed in relation to a criminal offence. For despite the categorization as a civil administrative penalty, depending on the magnitude of the AMP in question, it can look a lot like monetary punishment. Nor does it make a difference that the legislation in question explicitly states that it does not intend to punish. For, in determining whether an AMP has crossed the line into the realm of criminal law and punishment, one must look both at the intent and the actual effect of the legislation. If there is sufficient proof to the contrary, it can be demonstrated that the intent of the legislature (not to punish) has been overturned and negated. In other words, the penalty in question may be so punitive (in purpose and/or effect) so as to transform what is intended as a civil penalty into a criminal penalty. In such a case, it is of no consequence that the legislation specifically states that it did not intend to punish.[13]
Finally, it is important that regulators do not capitalize on the promise of civil fines as a cheap and effective enforcement tool, losing sight of when it actually becomes necessary to pursue prosecutions and punish wrongdoers. While it is sensible to save criminal prosecutions for the most serious infractions, and for which criminal sanctions are in fact appropriate, “administrative monetary penalties ought not to invade this territory”.[14] Large AMPs should not be allowed to gradually replace the role of offences, turning the offence regime into “relics that are rarely used” as prosecutors “drift toward using the more efficient scheme with lower procedural protections”.[15] * Arghavan Gerami is the Co-Editor of the Public Sector Lawyers’ Section Newsletter. She is currently completing her LL.M. at Osgoode Hall Law School.
[1] A. Tait, “The Use of Administrative Monetary Penalties in Consumer Protection,” prepared by the Public Advocacy Centre, May 2007, online: http://www.piac.ca/consumers/the_use_of_administrative_monetary_penalties_in_consumer_protection_1; [hereinafter Tait]. |
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Litigating in the Public Sector: Cases, Challenges and Values
Nikki Kumar*
The following article summarizes the proceedings from the conference, Litigating in the Public Sector: Cases, Challenges and Values, which took place February 4, 2008 at the Metro Toronto Convention Centre. The goals of the conference were to identify critical cases involving government entities, highlight the key trends, and to discuss ways to manage associated legal risks facing the government. The following three different panels presented at the conference: i) Major Trends and Issues Facing Public Bodies, ii) Managing Legal Risks – Best Practices, and iii) Winning Your Case in the Public Sector Context. Panel members consisted of senior litigators from municipal, provincial and federal government departments and agencies. Panel 1: Major Trends and Issues Facing Public Bodies The panel began with a presentation by Miriam E. Flynn, Senior Counsel, Department of Justice Canada, on the topic of private law duty of care of public bodies. In an overview of Crown negligence, the presentation summarized that in the past 50 years, there has been an erosion of Crown immunity despite the fact that according to the common law, the Crown cannot be liable in negligence. The three keystone cases in determining private law duty of care were mentioned: Cooper v. Hobart,[1] Edwards v. Law Society of Upper Canada,[2] and Odhavji Estate v. Woodhouse.[3] The presentation then went on to discuss recent public health cases, and their impact on determining proximity. Recent decisions indicate the courts have not found negligence in programming, but have found negligence in policing. However, in the public health context generally, the courts have been varied in their approach, although there are outstanding important court decisions at the Ontario Court of Appeal. Stephen M. Jarrett, Legal Counsel, Office of the President, University of Western Ontario, followed up with a presentation on the impact of university practice in government litigation. The presentation centered on two key emerging trends. First, the gradual erosion of the distance between the university and government, where traditionally there was an explicit separation between the two. In Freeman-Maloy v. Marsden[4] concerning York University, for instance, the court found it was not obvious that the University president could be considered a public authority in a misfeasance case. The second trend concerns the growing number of cases of students filing complaints with respect to academic decisions. In such “failure to educate” cases, students are increasingly using negligence and/or breach of contract arguments in an administrative law context. Although these actions thus far have been struck, Mr. Jarrett concluded that plaintiff lawyers are becoming more creative in leveraging the role of tort and contracts in their arguments. Kirsten M. Franz, Solicitor, Legal Services, City of Toronto, spoke about trends and issues facing the City of Toronto. She highlighted the fact that although in Hill v. Hamilton-Wentworth Regional Police[5] no negligence occurred with respect to false arrest, further inquiry was still warranted. She concluded with a discussion on recent public health cases finding health inspectors did not act negligently, but commented that a spate of new challenges continue to be brought into the courts. Dennis W. Brown, Q.C., General Counsel, Ministry of the Attorney General, gave an overview of major trends and issues facing public bodies. He cited the Eliopoulos v. Ontario (Minister of Health and Long-term Care)[6] case as critical in defining the statutory duties of the Crown, and Williams v. Canada (Attorney General),[7] which was still pending a decision from the Ontario Court of Appeal. In summary, Michael M. Fleishman, Counsel, Crown Law Office – Civil, Ministry of the Attorney General, reiterated that Crown immunity was eroding, and consequently, required increased vigilance in protecting its interests. Panel 2: Managing Legal Risks – Best Practices Daniel J. Abrahams, Counsel, The Law Society of Upper Canada, spoke on the topic of determining risk in a regulatory context. He explained a sample risk assessment paradigm based on identifying the factors comprising risk assessment (facts and evidence, both known and unknown), who performs it (intakes, staff, managers, and the general public), and the types of risk and risk factors (risk to public, risk to subject, and risk to agency). Mr. Abrahams concluded with the advice to lawyers to be proactive in promoting policy where appropriate. Anna K. Kinastowski, City Solicitor, Legal Services, City of Toronto, followed with a presentation on the municipal level of government. Noting that municipal governments are those closest to taxpayers, she said that in addition to giving legal advice, a major part of the lawyers’ duty is to ensure that municipal operational staff are educated on the relevant policies. She mentioned a recent municipal course that provided lessons on preparation for hearings, report writing, witness preparation, and cross-examination. Ms. Kinastowski concluded that a knowledgeable and educated client reduces risk, while a prepared witness is more able to advance the City’s position. Malliha R. Wilson, former Director, Crown Law Office – Civil, (now Assistant Deputy Attorney General, Legal Services Division), Ministry of the Attorney General, gave a presentation on three steps to manage risk. The three steps were identifying and categorizing possible costs, assessing exposure to legal risk, where exposure was a multiple of probability and impact, and responding to the risk via mitigation, monitoring, or acceptance. She explained how this three-step model could guide analysis and provide standardization, while emphasizing the need to carefully manage the financial, operational, and political costs. Mark L. Berlin, Director General, International Legal Programs Section, Department of Justice Canada, spoke on managing legal risks – best practices. He gave a top 10 list for lessons learned that included creating an appropriate governing structure, appropriate and timely communication of risk to the Minister as well as clients, and increased coordination between entities. Panel 3: Winning Your Case in the Public Sector Context Janet E. Minor, General Counsel, Constitutional Law Branch, Ministry of the Attorney General, discussed the issue why the Crown does not win or lose. According to Ms. Minor, this phrase derives from the criminal law context, which is designed as a truth-seeking process that neither favours the Crown nor the accused; rather, the Crown has a goal of seeing justice done. She noted that in the civil context the Crown can indeed “win” the case, but should do so while upholding the rule of law and furthering the constitution. Roslyn J. Levine, Q.C., Executive Legal Officer, Ontario Superior Court of Justice, Ministry of the Attorney General, spoke on the dichotomy between public and private litigation. She stated that the Crown can and should be successful in the context of public litigation. However, in constitutional challenges, neither party wins or loses since the role of the Crown is to put forward the best context for the issues to be decided. Indeed, the Crown has the valuable role of defending legislation. One example Ms. Levine cited was the Reference re Same-Sex Marriage,[8] where the Crown provided the Court with the best understanding of the “other side” of the case. Other obligations of the Crown include negotiations in the context of Aboriginal affairs, and ensuring appropriate remedies in the context of constitutional cases. Michal E. Minkowski, Legal Counsel, Legal Services, City of Mississauga, followed up with a presentation on a municipal perspective of winning cases in the public sector context. He mentioned the clear distinction between wanting to win through presenting the best case possible versus simply wanting to win. All litigators operate under the rule of law, under rules of professional conduct, and within an adversarial context; a high level of integrity applies to both sides. Therefore, there should not be an expectation that the Crown acts with any higher level of integrity, despite the fact that there may be a common impression that the private sector should not act to the same standard. Mr. Minkowski outlined five key considerations to determine whether a case has been won or lost: the implication of one’s own position having been advanced, the implication on broader policy objectives, the implication on existing and emerging legal frameworks, the extent necessary to which one is willing to further your position, and concern for setting precedence. Peter Cory, Senior Advisor, Department of Justice Canada, closed this panel with a presentation on the judicial perspective. He said that judges are trying to reach a fair and just result based on three key values: integrity, preparation, and fairness. He further explained that expectations from the Bench of the Crown include preparation (e.g., putting everything before the court), gathering evidence (e.g., witnesses and statistics from Statistics Canada), and knowing the consequences (e.g., costs and impacts). He reiterated that the system works better if both sides put forward all evidence, and that as society continues to evolve, so too must the law. Questions, Answers, and Conclusion Julie Jai, Director, Policy and Integration, Department of Justice Canada, facilitated a quick Q&A session to all presenters. Asked for examples where the Crown lost, but considered it a win, Ms. Levine, cited the Reference re Same-Sex Marriage.[9] Mr. Minkowski cited a case heard by the Ontario Municipal Board on the construction of a power generator. Asked for an explanation of how winning or losing differs based on context, Mr. Minkowski and Ms. Minor both responded that expectations are higher for the Crown because they are given a higher level of scrutiny, while Mr. Cory commented that one must examine the facts and consequences in order to ensure fairness is obtained. Ms. Jai ended the panel sessions with a number of key points on the role of the Crown in litigation, including that the Crown should vigorously defend the client’s position, provide the court with all available information, and help the client develop objectives that promote the public interest. She said the Crown should defend the law, assist with the evolution of unsettled law, defer to Parliament or the Legislature, and most importantly, uphold the rule of law. * Nikki Kumar is a Student-at-Law at the Department of Justice Canada, Ontario Regional Office.
[1] [2001] 3 S.C.R. 537, S.C.J. No. 76 (QL). |
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Building New Avenues for Alternative Dispute Resolution Carla Goncalves Gouveia*
Ontario’s civil justice system is shifting from a litigation-centered model to the adoption of a multi-faceted dispute resolution system. There is a growing recognition that it is time to look beyond adjudication and to consider a spectrum of alternatives. The CBA Task Force on Systems of Civil Justice recognized this fundamental shift and specifically encouraged the development of a “multi-option” civil justice system.[1]
A new vision of a multi-option dispute resolution system has emerged where litigants choose one of many paths to resolve their disputes and lawyers adopt a problem-solving approach in their practice. A multi-option system would integrate alternative dispute resolution (ADR) mechanisms, such as negotiation, mediation, collaborative law, and arbitration. It has been recognized that this new approach is not only desirable; it is a new professional obligation. In Fortin v. Chrétien, Justice Gonthier echoed this professional obligation when he stated that, whenever it is appropriate to do so, a “good advocate ... must discuss alternative dispute resolution methods (mediation, conciliation and arbitration) with his client, and must properly advise the client regarding the benefits of settling disputes”.[2]
The underlying aim of a multi-option system is to increase access to justice and modernize the Canadian civil justice system. Greater opportunities for alternative dispute resolution processes have been referred to as a means to reduce the cost and delay in the civil justice system, as well as a means to foster greater civility and co-operation among members of the bar.[3]
ADR processes are taking over traditional methods of handling disputes and revolutionizing the way in which professors, practitioners and law students are thinking and learning about the law. Professor Trevor Farrow argued that there is a need for continued thinking and reform in dispute resolution teaching and research programs, especially within the context of improving access to justice. Farrow, further noted that civil justice reforms act as a leading resource to assist in the ongoing, collaborative development of dispute resolution initiatives in legal education in Canada and abroad.[4]
Many law schools in Ontario and other parts of Canada have expanded their curriculum to include courses such as mediation, arbitration, and negotiation. According to a CBA Survey, there is increased interest in and emphasis on ADR in all law schools.[5] In fact, student interest and demand has driven much of the effort and development of ADR in law schools. At Osgoode Hall Law School, York University in Toronto, students have led many of the ADR initiatives. For example, an experimental mediation training program was initiated by LL.M. students. The practical mediation training program experienced a great deal of success and has continued to be a part of the Osgoode course curriculum. The course, entitled the Theory and Practice of Mediation, offers students an opportunity to develop an understanding of mediation within the context of Small Claims Court. In the mediation practicum, students participate in at least four co-mediations with a fellow student and in the presence of a mediation coach at Small Claims Court in Toronto. As a part of student training, mediation services are offered to parties on the morning of their hearing date at Small Clams Court. Student mediators work with parties to try to resolve their dispute before their trial commences. Mediation coaches are present and provide assistance and support for students. There are multiple advantages to these types of programs. First, it introduces parties to an alternative form of dispute resolution. It allows parties, the benefit of a final opportunity to a negotiated settlement. Lastly, parties are offered an opportunity to discuss their case before trial. It allows them to clarify their points and highlight relevant issues. This experience is especially beneficial for unrepresented parties, who may have limited court experience. The ADR Project is another new initiative at Osgoode Hall that promotes the benefit of alternative dispute resolution mechanisms. Then Osgoode students, Andrew Magnus, Vera Spirovski and Julia Tomson, led by Radhika Lakhani, established the ADR Project in the winter of 2005. It began, and continues to be, a student run initiative. The ADR Project offers mediation experience to selected students in preparation for the creation of an Osgoode ADR Clinic. The idea grew out of an observation that there was strong demand among Osgoode students for more information about how to obtain greater practical experience in ADR, as well as work within the alternative dispute resolution field. There are many benefits to initiatives, such as the ADR Project. It provides students with the opportunity to participate in public service work that is focused on increasing professional and ethical training among students. This project also promotes a collaborative learning environment by creating opportunities for students, faculty, staff and alumni to connect in joint endeavours. In addition, by affording students the opportunity to mediate, co-mediate, client counsel and facilitate negotiations, they also learn more about their professional responsibilities. The final and one of the most important benefits of this project is the commitment to serving the greater community. Law schools, such as Osgoode Hall, are in the privileged position of being able to offer specialized dispute resolution services and promoting greater access to justice within their community. The ADR Project objectives centre on offering students greater practical experiences in ADR and expanding opportunities for public interest work. It hopes to enhance interaction among students and faculty within Osgoode and create a forum for students to serve the surrounding community using the skills and knowledge gained during their education. This multi-dimensional project creates a participatory role at every level of legal education, including LL.B students, LL.M students, Osgoode Alumni and Osgoode faculty and staff, increasing opportunities for working together at each step. In order to bring this vision to life, the ADR Project members developed a three-phase plan. The first phase centered on raising awareness of ADR among Osgoode students and developing a “network” list of students interested in ADR. Currently, the ADR Project is in phase two. The second phase creates partnerships with and collaboratively integrates the ADR program into the Osgoode community, as well as the existing ADR/Mediation courses. Partnership organizations could include, for example, Small Claims Court, Financial Services Commission of Ontario and the Ontario Rental Housing Tribunal. This year, the ADR Project worked closely with the Theory and Practice of Mediation course led by Professor Zemans. This collaboration offered opportunities for joint training, as well as an extended partnership with the Small Claims Court in Toronto. The final phase of the plan will launch an on-campus clinic where students, under staff supervision, will provide free mediation services to members of the surrounding community. The ADR Project vision is to have the clinic operate alongside the legal aid clinic at Osgoode, C.L.A.S.P. (Community Legal Aid Services Program), thus creating an alternative space for the resolution of disputes outside of the court system. Upper-year law students interested in participating in the clinic would follow the same process in applying to Osgoode’s intensive study programs. The program would have three main components: 1) mediation training; 2) hands-on experience through conducting mediation for disputants in the community, under the supervision of experienced lawyer/mediators; and 3) an outreach program, where the students will visit neighbouring schools to speak to them about methods of conflict resolution in their relationships with their peers, friends and family, including conflict prevention skills. Students accepted to the intensive study program would receive credits for their participation. Students not enrolled in the intensive program would also have the opportunity to get involved with the clinic on an extra-curricular basis, which would count towards Osgoode’s 40-hour Public Interest Requirement. The ADR Project hopes to have the Osgoode ADR Clinic fully established within the next 12-18 months. The Osgoode ADR Clinic aims to assist individuals with resolving conflicts before they escalate into legal disputes. It will provide a forum for settling disputes in a party-driven process with the assistance of students trained in mediation and other dispute-resolution methodologies. This process will devolve on the parties’ own terms and with the goal of addressing their particular needs and desired outcomes. The Osgoode ADR Clinic also has a transformative goal. It seeks to empower individuals to integrate conflict resolution tools in their own personal relationships. As part of this mandate, the ADR Project also aims to teach dispute resolution skills to children and teenagers in schools, educating them about constructive options for dealing with conflict at an early age. Ultimately, it hopes to increase access to justice and be a part of a dynamic justice system. As expressed by both Farrow and Macdonald, “true justice”, will come from a multi-faceted approach that focuses on increasing justice in our own lives and in our relationships in society.[6]
The promise of new ADR avenues can assist in the goal of raising access to justice. While all cases may not be right for mediation, or other ADR processes, in most cases, it offers both parties an opportunity to reach an amicable and mutually satisfying resolution. More importantly, however, is the recognition that the fundamental basis for development of ADR avenues is to provide options and alternatives. As expressed by Professor Farrow, both court and non-court-based ADR initiatives will provide individuals with various cost-effective options that will increase access to the civil justice system over the long-term.[7]
The increasing role of ADR processes and mediation offers opportunities for the development of new programs and initiatives in legal education, as well as in the civil justice system. The legal field is a dynamic and evolving practice that challenges students and practitioners to respond to the growing needs of clients and citizenry. Collaborative initiatives between law schools, courts and the greater community, such as the ADR Project, can modernize the justice system and ultimately transform the manner in which disputes are resolved. * Carla Goncalves Gouveia, LL.B, ADR Project Board of Directors, Chair of Training. She is also a Student-at-Law with the Policy Division, Ministry of the Attorney General, Toronto.
[2] [2001] 2 S.C.R. 500 at para. 53. [3] See Honourable Coulter A. Osborne, Q.C., Civil Justice Reform Project: Consultation Paper (Toronto: Queen’s Printer, 2007). [4] See Trevor C.W. Farrow, “Dispute Resolution, Access to Civil Justice and Legal Education” (2005) 42 Alberta Law Review 741 [Farrow]. [5] Canadian Bar Association, “Attitudes, Skills, Knowledge: Proposals for Legal Education to Assist in Implementing a Multi-Option Civil Justice System in the 21st Century” (Ottawa: CBA, August 1999) at 25. [6] Farrow, supra note 4 at 798. [7] Ibid., at 746. |
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Privacy and Video Surveillance under FIPPA and MFIPPA Priscilla Platt and Adam Kardash*
As excerpted from Heenan Blaikie's electronic guide to M/FIPPA, Chapter 20, available at www.accessprivacy.ca. 1. Video surveillance is a controversial activity from a privacy perspective. The IPC has stated in its Guidelines for Using Video Surveillance Cameras in Public Places that institutions governed by FIPPA or MFIPPA that are considering implementing a video surveillance program must balance the benefits of video surveillance to the public against an individual’s right to be free of unwarranted intrusion into his or her life.[1] 2. FIPPA and MFIPPA include “videotapes” in the definition of the term “record”.[2] If a videotape identifies individuals, it contains “personal information” under FIPPA and MFIPPA. The institution that collects personal information through video surveillance may do so directly, as when it takes the video itself, or indirectly, when it obtains the videotape from a third party service provider. In either case, the institution’s collection of the information must be authorized in accordance with subsections 38(2) of FIPPA and 28(2) of MFIPPA. 3. On March 3, 2008, the IPC issued its landmark report on “Privacy and Video Surveillance in Mass Transit Systems: A Special Investigation Report”.[3] In it, the IPC found that such video surveillance could be authorized under subsection 38(2) of FIPPA or subsection 28(2) of MFIPPA, as “for the purposes of law enforcement” or as “necessary to the proper administration of a lawfully authorized activity”. In relation to law enforcement, the IPC considered the role of the TTC Special Constable Services Department in enforcing laws, their powers and jurisdiction and the agreement between the Toronto Police and the TTC Special Constables. 4. In relation to the necessity condition, the IPC adopted the test approved by the Ontario Court of Appeal in Cash Converters Canada Inc., v. Oshawa (City),[4] that is: the lawful authority must be identified and it must be shown how the collection is “necessary”, not merely helpful, to the achievement of the objective. As well, the justification must be provided for all classes of personal information that are collected.[5] The IPC considered the lawful authority in the City of Toronto Act, 2006, which provides the TTC with the exclusive authority to establish a public transit system and found that the collection of the personal information through video surveillance cameras is necessary to the proper operation of a public transportation system in Toronto. In so concluding, the IPC reviewed studies and incidents, terrorist and otherwise, in mass transit systems world-wide. The IPC accepted that safety and security are essential to the proper functioning of the TTC and that all options, including video surveillance, should be employed. It also determined that the collection of images through video surveillance was not merely helpful, but “necessary” to the proper administration of the subway system.[6] 5. The Report made 13 recommendations as to privacy enhancing processes that must be in place before such surveillance may be used. Among the recommendations is that the TTC should implement a maximum retention period of 72 hours for video images not used by the TTC. The IPC also recommended that annual audits be undertaken independently to ensure that the recommendations for video surveillance are abided by. The practices intended to enhance privacy include logs that note who had access to the videos, written confidentiality agreements with staff and signs that provide notices of collection. Going forward, as the TTC implements video surveillance, the IPC recommended that the TTC keep abreast of developments of privacy-enhancing technologies, that it try a particular technology developed by researchers at the University of Toronto that uses object-based encryption to obscure video surveillance images (and then allows for decryption by authorized individuals) and that it conduct public consultations on the use of video surveillance. 6. In its earlier Guidelines for Using Video Surveillance Cameras in Public Places, the IPC recommended consideration of the following, before deciding to use video surveillance:
7. The IPC conducted a privacy review for the City of Peterborough’s video surveillance program. A group of complainants, concerned that the city had not provided adequate signage, contacted the IPC. Primarily located in specific areas (Millenium Park, boathouse, and museum) to prevent vandalism, the video surveillance cameras were not actively monitored. Footage would be viewed only in response to an incident. 8. The IPC investigated the complaint and made the following recommendations:
9. In 2002, Justice Gérard LaForest, a former Justice of the Supreme Court of Canada, provided an opinion to the Office of the Privacy Commissioner of Canada regarding the legal implications of the use of video surveillance by the police on public streets. Justice LaForest found that a strong case may be made that, in relation to institutions that are governed by the Charter, “general video surveillance, whether or not recorded, violates section 8 of the [Canadian] Charter [of Rights and Freedoms]”.[9] 10. In commenting on an individual’s “reasonable expectation of privacy” in a public spaces, Justice LaForest stated:
11. Justice LaForest stated further that notice itself would not neutralize the privacy breach:
12. In Privacy Complaint Report PC-010005-1, the Ontario Provincial Police ("OPP") collected personal information through the application of face recognition technology in order to match the faces of casino patrons to mug shots in the police database.[12] The IPC held that this personal information was collected and used solely for the purposes of law enforcement, specifically section 209 of the Criminal Code, which makes cheating while playing a game or betting an indictable offence. If an investigation concludes that a person has engaged in illegal activity, the facial scan is retained in the OPP database at that particular casino. If an investigation concludes that an individual is not involved in illegal activity, the facial scan is deleted. The personal information is not used for any other secondary purpose beyond law enforcement. More specifically, access by OPP officers is restricted to those working on casino law enforcement and only for that purpose. Therefore, the IPC concluded that the OPP's collection of personal information was in compliance with subsection 38(2) of FIPPA and subsection 28(2) of MFIPPA.[13]
* Priscilla Platt and Adam Kardash, Heenan Blaikie LLP.
[1] Guidelines for Using Video Surveillance in Public Places, IPC (October, 2001), available online at http://www.ipc.on.ca/images/Resources/video-e.pdf [“Guidelines”]. Notably, in Privacy Complaints MC06-49 and MC06-67, while video surveillance of employees was found to be excluded under MFIPPA, the IPC, in a Postscript, indicated that such surveillance should be done in such a way as to avoid inadvertently collecting the personal information of other individuals. |
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Bid Shopping Imbroglio Hits Cape Breton Paul Emanuelli*
The Town of Port Hawkesbury, Nova Scotia, which is known as “Cape Breton’s Front Porch”, recently found itself on the frontline of a bid-shopping controversy. In its unanimous February 2008 decision in Port Hawkesbury (Town) v. Borchert Concrete Products Ltd., the Nova Scotia Court of Appeal upheld a Nova Scotia Supreme Court trial decision that found the Town liable in connection with a tangled tendering process. The case, which involved the construction of bleachers for the new $15 million Port Hawkesbury Civic Centre, serves as a cautionary tale illustrating the inherent risks of post-bid bargaining. Trial Decision Finds Town Liable for In-Sourcing The Town had initially issued a tender call for the construction of the concrete bleachers. Since the low bid was well over budget, the Town took steps to reduce costs. It decided to in-source a portion of the work by acting as its own general contractor and sought third-party quotes to assist it in building the bleachers. In its October 2006 trial decision, the Nova Scotia Supreme Court found that this conduct amounted to “bid shopping”. The Court found the Town’s conduct to be an “egregious attack on the integrity of the bidding process” that went well beyond the rights afforded under the tender call privilege clause:
The Court found the Town liable for the low bidder’s lost profits in the amount of $69,000. The Nova Scotia Court of Appeal reduced the lost profits damages award to $45,000. However, it upheld the trial court’s finding that the Town had contravened the tendering rules by engaging in bid shopping. In so finding, the Court of Appeal adopted an expansive definition of “bid shopping” that included:
As this definition illustrates, the courts tend to frown upon a purchaser’s attempt to use the formal tendering process as a springboard to subsequent negotiations. However, not all post-bid bargains constitute bid shopping. When it comes to considering bid shopping allegations, careful attention is often placed on the timing of events. By way of example, in its July 2007 decision in R. v. Crown Paving, the Newfoundland and Labrador Supreme Court found the provincial government not liable for bid shopping. In this case, the government cancelled a highway maintenance tender call after the bids came in over budget. It then negotiated an extension with its existing contractor, who also happened to be the higher of the two bidders on the cancelled tender call. The Court concluded that this was not bid shopping because the government had cancelled the tendering process prior to initiating the subsequent contract extension negotiations. The fact that the government was able to show that the bids were significantly over budget also helped in the defence against the bid shopping claim by showing that the cancellation was legitimate. Like the Newfoundland case, the Port Hawkesbury case dealt with an over budget low bid. However, unlike the Newfoundland case, the Town failed to cancel its tendering process prior to initiating fresh negotiations for a lower cost approach. Embarking on new negotiations while the low bidder remained bound to its bid proved to be the tipping point that resulted in a finding of bid shopping against the Town. As these cases illustrate, navigating the straits between permissible post-bid negotiations and improper bid shopping can be a perilous voyage for purchasing institutions. * Paul Emanuelli is a Canadian procurement lawyer and author of a textbook entitled Government Procurement. He distributes a free electronic newsletter, the National Tendering Law Update, to a cross-Canada subscriber base of purchasing professionals. |
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Federal Crackdown Targets Bid Rigging and Conspiracy Scams Paul Emanuelli*
While many procurement professionals would assume that bid-rigging and price-fixing conspiracies are rare events that occur in exotic offshore locales or in Hollywood movies, the reality is that these scams are closer than you think. In fact, your institution may be a victim without even knowing it. The following column highlights the federal crackdown against these commercial crimes and provides an overview of some of the warning signs that can assist you in detecting and reporting the anti-competitive practices that cost us millions of dollars a year. The federal Competition Act establishes a number of “Offences in Relation to Competition” including “bid-rigging” and “conspiracy”. As the federal Competition Bureau states:
As detailed on its website (see www.competitionbureau.gc.ca), the Competition Bureau has successfully conducted many prosecutions that have led to multi-million dollar fines and even jail sentences. Prior conspiracies have impacted many significant construction projects, including Pearson International Airport, the Toronto Skydome Hotel and BCE Place, along with a broad range of industries and goods and services including re-enforcement cable, flour milling, electrical contractors, timber, paper, compressed gas, concrete, fax paper, ambulance operators, pharmacies, waste disposal, snow removal, bulk vitamins and notary services. Types of Bid Rigging
In April 2008, the Competition Bureau launched a free online Bid-Rigging Prevention Tool that identifies a number of common forms of bid-rigging including:
Risk Factors and Telltale Signs
The following list, which was derived from the federal government’s Supply Manual and from the Competition Bureau’s Bid-Rigging Prevention Tool, summarizes the top five telltale indicators of potential bid-rigging and price-fixing conspiracies:
Buyers Beware
As the Competition Bureau notes, “buyers can play a major role in combating bid rigging”. If you suspect the presence of bid-rigging or price fixing, the Bureau advises against confronting the suspected participants directly. Instead, purchasing institutions should make a thorough written record of all relevant details, contact their legal advisors and contact the Competition Bureau. Proper training and increased buyer vigilance can help assist in federal law enforcement efforts and significantly reduce the anti-competitive practices that undermine open competition and unnecessarily cost institutions, consumers and taxpayers millions of dollars a year. * Paul Emanuelli is a Canadian procurement lawyer and author of a textbook entitled Government Procurement. He distributes a free electronic newsletter, the National Tendering Law Update, to a cross-Canada subscriber base of purchasing professionals. |
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Public Sector Lawyers Honour David Lepofsky with the OBA Tom Marshall Award of Excellence 2008 Recipient Speaks about his Advocacy for the Disabled Abi Lewis*
David Lepofsky, a criminal lawyer noted for his disability rights advocacy, added another feather to his cap when he was presented with the 2008 OBA Tom Marshall Award of Excellence for Public Sector Lawyers on April 7, 2008 in Toronto.
Ontario’s Lieutenant Governor David Onley was on hand to congratulate Mr. Lepofsky at the occasion witnessed by the recipient’s family, public sector lawyers and other members of the bar.
Mr. Onley spoke about the dogged pursuit of the award recipient for accessibility rights of the disabled community, noting that Mr. Lepofsky had taken up this cause since his student days in the university. The Lieutenant Governor said that he has long admired Mr. Lepofsky for his advocacy work, describing him as one of the leading constitutional lawyers and activists for equality rights.
Although the Lieutenant Governor said that he had recently installed Mr. Lepofsky into the Order of Canada, he did not hesitate to accept the OBA invitation to make a few remarks at the award dinner. Mr. Onley commended the OBA and public sector lawyers for choosing to honour Mr. Lepofsky. Liesha Earle, who nominated Mr. Lepofsky for the award, spoke about the recipient’s achievements and outstanding legal contributions since he was called to the bar in 1981. According to her, Mr. Lepofksy embodies and personifies access to justice, recalling some of his legal victories in his advocacy for the rights of the disabled. Mr. Lepofsky, in his speech after receiving the award, said that it’s been a privilege to advocate the cause of disabled and that he owes a debt of gratitude to the Ontario disability community. He’s thrilled at the opportunity of doing advocacy and human rights in addition to his regular job as an appeals lawyer with the Ministry’s Crown Law Office – Criminal. He shared with the gathering that included his wife and mother a couple of matters that he was involved with as an advocate for the rights of the disabled. One was his long-running dispute with the Toronto Transit Commission (TTC) that started in 1994 when he wrote to the TTC to request that subway drivers call the stops at all stations. Although rebuffed initially by the TTC, Mr. Lepofsky persisted with his effort to effect a policy change for TTC staff. After the TTC agreed in principle to his request, he found that subway drivers were not responsive to calling out the stops. As a result of his frustration, Mr. Lepofsky filed a complaint against the TTC for violation of his rights as a blind person under the Human Rights Code. In 2005, the Human Rights Tribunal ordered the TTC to announce subway stops. To get the TTC to extend the policy to bus drivers, Mr. Lepofsky filed another complaint, which the Tribunal ruled in his favour in 2007. The matter has remained topical as the Ontario Human Rights Commission has been promoting province-wide compliance with the ruling by urging all transit systems across Ontario to change their policy and call subway and bus stops. Mr. Lepofsky also spoke about his advocacy for the disabled community regarding the government’s reform of the human rights system. He noted that the planned direct access of human rights litigants to the Tribunal could impact on the ability of minorities to pursue their human rights because the Ontario Human Rights Commission would no longer have the power to first investigate, conciliate, screen and prosecute individual claims. He criticized the new rules proposed by the Tribunal on how it would handle human rights complaints, saying that it’s troubling that the Tribunal has been given power to make rules that could override legal safeguards. Mr. Lepofsky also commented on the progress made in making the court system fully accessible, highlighting the work of a committee that he was involved with regarding accessibility issues at the courts. The award presentation was recorded on video and is available on the OBA website: http://www.oba.org/video/Public_Sector_Award_2008.wmv |
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Message from the Editor Arghavan Gerami*
This issue of the newsletter offers our readers a diverse range of articles. From articles on the programs put on by the Public Sector Lawyers, to an article on alternative dispute resolution, to a piece on privacy and video surveillance, we have got something of interest for everyone. Here’s a synopsis of what this issue covers:
We would like to take this opportunity to thank our readers, our contributors, our Section members and all the OBA staff for their hard work in putting together this edition of our newsletter. As always, we encourage you to write articles for our newsletter and to share your ideas with us. We hope to hear from you for our next issue, which will be coming out in the Fall of 2008. Thank you and we wish all of you a wonderful summer with your friends and families. * Arghavan Gerami, Hon. BA., MA., LL.B., LL.M. Candidate (2008), (647) 280-5756, arghavan@geramilaw.com. |