June 2011 - Briefly Speaking by Ontario Bar Association

Official Magazine of the Ontario Bar Association - A Branch of the Canadian Bar Association

June 2011 | Vol. 36 No. 3

EnBref

Brieflyspeaking

Reflections of Evil? The Strange Saga of Dr. Charles Smith

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BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO R. Lee Akazaki President/Président Paul R. Sweeny 1st Vice President/1er Vice-président Morris A. Chochla 2nd Vice President/2e Vice-président Sean M. Kennedy Secretary/Secrétaire Douglas R. Downey Treasurer/Trésorier Carole J. Brown Immediate Past President/Présidente sortante Steve Pengelly Executive Director/Directeur exécutif Editorial Board/Comité rédacteur James Morton Chair / Président Steinberg Morton Hope & Israel LLP Nancy Cooper Nancy E. Cooper Law Office Alastair Clarke York Community Services The Honourable Justice Heather McGee Superior Court of Justice

14 20 22 32

The Two Faces of Dr. Charles Smith

Perils of Patios

Law Day

See and Be Seen: Bencher Reception

Chantal Brochu Buset & Partners LLP The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano

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Should U Ottawa be Designated Under the FLSA? | U Ottawa et LSF | Albert Nolette

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and Matthew Letourneau | 12

Questions or Comments? / Questions ou commentaires?

Dr. Charles Smith | Harold Levy | 14 Lotto Litigation | Jeffrey S. Percival | 18

Editorial Team, Briefly Speaking/ Rédaction, En bref

The Perils of Patios | Juliet Knapton and Mike Brown | 20

Robert Mitchell Director, Communications and Marketing/ Directeur, communications et marketing 416-869-1047 ext/poste 318 rmitchell@oba.org

Law Day | Filippo Conte | 22

Catherine Brennan Communications Specialist/ Spécialiste de communications 416-869-1047 ext/poste 357 cbrennan@oba.org Cheryl Crocker Marketing Specialist/ Spécialiste marketing 416-869-1047 ext/poste 309 ccrocker@oba.org Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 rgilmour@oba.org Filippo Conte Bilingual Communications Specialist/ Spécialiste bilingue de communications publiques 416-869-1047 ext/poste 346 Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363

Cover Photo: The Canadian Press/Frank Gunn Publications Agreement Number 40069139 Return Undelivered Canadian Addresses to: OBA | 300-20 Toronto St Toronto, ON | M5C 2B8

The opinions expressed by the authors in Briefly Speaking are not necessarily the approved views of the OBA.

Briefly Speaking • En Bref | June 2011

Nota BenE

Nota Bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene SUPERIOR COURT OF JUSTICE The Honourable James W. Sloan, a partner with Sloan Strype LLP in Waterloo, is appointed a Judge of the Ontario Superior Court of Justice in Kitchener, to replace Mr. Justice C.R. Harris, who elected to become a supernumerary judge as of March 13, 2011 and whose position was transferred to Kitchener. Mr. Justice Sloan received a Bachelor of Math (B. Math) from the University of Waterloo in 1968 and a Bachelor of Laws (LL.B.) from the University of Ottawa in 1971. He was admitted to the Bar of Ontario in 1973.

Mr. Justice Sloan had been a partner at Sloan Strype LLP since 1975. He has been a Deputy Judge of the Small Claims Court since 1998. He was a lawyer with Brock & Coleman from 1973 to 1975. His main areas of practice include family law, civil litigation, wills and powers of attorney and estates. Mr. Justice Sloan is a member of the Canadian Bar Association and the Advocates Society. He is also a member of the Waterloo Law Association, the Waterloo-Wellington Estate Planning Council and the Collaborative Family Law Association of the Waterloo Region. He has been a lecturer for the Certified General Accountants Law Course for the past five years. He is a speaker at senior citizen meetings and at high schools. He is also a member of numerous community committees. The Honourable Thomas J. Carey, a sole practitioner in Mississauga, is appointed a Judge of the Ontario Superior Court of Justice in Windsor, to replace Mr. Justice J.G. Quinn, who elected to become a supernumerary judge as of February 26, 2011. 2

Mr. Justice Carey received a Bachelor of Laws (LL.B.) from the University of Windsor in 1977 and was admitted to the Bar of Ontario in 1979.

Mr. Justice Carey has been a sole practitioner since 1984. In 1989, he was certified by the Law Society of Upper Canada as a Specialist in Criminal Litigation. He has been a Deputy Judge in Small Claims Court since 1992 and a Standing Agent, Criminal Prosecutions for Justice Canada since 2000. From 1981 to 1984, he was a partner with Batchelar & Carey and a junior lawyer with West & Robb from 1979 to 1980. His main areas of practice were criminal defence and prosecutions. Mr. Justice Carey has been a director of the Sir Thomas More Lawyers Guild since 2003. He is the founding president of the Peel Criminal Lawyers’ Association and has been treasurer since 1983 and a member of the Ontario Criminal Lawyers’ Association since 1982. He was a Bencher for the Law Society of Upper Canada from 1988 to 1991 and from 1994 to 2003. Since 1979, he has been a member and past secretary of the Peel Law Association. He is a member and volunteer with numerous community organizations. The Honourable Deborah L. Chappel, a sole practitioner in Hamilton, is appointed a Judge of the Ontario Superior Court of Justice, Family Division in Hamilton, to replace Mr. Justice R.J. Mazza, who elected to become a supernumerary judge as of January 6, 2011. Madam Justice Chappel received a Bachelor of Arts (B.A.) from the University of Toronto in 1986. She received a Bachelor of Laws (LL.B.) in 1989 from Queen’s University and a Master of

June 2011 | Briefly Speaking • En Bref

Nota Bene Laws (LL.M.) from the University of Toronto in 1991. She was admitted to the Bar of Ontario in 1992. She was a member of the Bar of British Columbia from 1996 to 2000.

Madam Justice Chappel has been a sole practitioner since 2006. She was in-house legal counsel for the Ontario Ministry of the Attorney General, Office of the Children’s Lawyer, from 2008 to 2009; for the Department of Justice Canada, Aboriginal Law and Business Law sections from 2000 to 2006; for the Catholic Children’s Aid Society of Toronto from 1997 to 2000; for the Ministry of the Attorney General of British Columbia, Family Law Group, from 1996 to 1997; and for the Children’s Aid Society of Hamilton-Wentworth from 1992 to 1996. Her main areas of practice were general matrimonial law, child protection law, administrative law, education law (pro bono work), all major areas of tort law, Aboriginal law and law relating to institutional and governmental liability. Madam Justice Chappel has been a member of the Hamilton Law Association since 2007 and was a member of the Organization of Counsel for Children’s Aid Societies from 1992 to 2000. She has provided pro bono legal assistance to children and their parents respecting education law matters since 2006. Since 2004, she has been a volunteer for the Ontario Lawyers’ Assistance Program. She has co-authored several papers and has been a presenter at conferences. She is a volunteer with numerous community groups.

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Briefly Speaking • En Bref | June 2011

Letters to the Editor

Re: Naming and Shaming in the Family Court by Fareen Jamal (April, 2011) I agree. The balance between open courts, media freedom, the public’s right to know, on the one hand, and the interests of litigants in the privacy of their affairs has gone seriously off kilter in Canada. As you point out, it is off-kilter in family disputes; also it is off-kilter in estate disputes, and commercial disputes of various kinds including in particular disputes involving intellectual property and trade secrets and arbitration. While the consequences may be somewhat different in the different types of disputes, they have in common that —particularly in the era of the Internet, with its ability to spread information instantly and globally and keep it out there forever—the openness harms Canadian litigants without corresponding enhancement of the public interests which the courts say they are protecting. With respect to Justice Cummings, he was wrong to say the consequences are unavoidable—certainly in the area in which I practice, international arbitration; other jurisdictions including England have found ways to reduce, if not avoid almost entirely, the level of publicity that we have created and allow to exist and even grow in this country. … I thought you might like to know that you are not alone, and family litigants and lawyers are not alone in having serious concerns. – Barry Leon, International Arbitration Group

Have Your Say. Write to us at brieflyspeaking@oba.org

An OBA Animal Law Section—It’s Time! The OBA offers members a unique environment to network with like-minded lawyers from over 35 practice-specific sections. As the law evolves and new practice areas develop, the association receives requests for new sections. For example, the Environmental Law Section emerged from a cultural shift in the 1970s resulting in a greater awareness of our planet. The Health Law Section was created 25 years ago as a direct response to the AIDS epidemic. Most recently, Class Actions and Franchise Law became OBA Sections to allow members to focus on developing areas of civil litigation and business law. In the following article, OBA member Nicholas dePencier Wright makes his case for a new section: Animal Law… People love animals—and when passions run high lawyers are called on to resolve disputes and to help formulate better public policy. But the rapidly developing area of animal law is about more than pit bull bans and animal trusts, it is following in the steps of a social movement that is reshaping the way that we think about and interact with animals. More and more people are starting to see animals as deserving of more care and consideration than other forms of legally recognized property. This is affecting the way that existing laws are being interpreted, is resulting in the formulation of new laws, and, perhaps most notably, is resulting in a divergence between public opinion and existing legal frameworks. Many lawyers are now working in academia building new frameworks, with established animal organizations supporting animal welfare campaigns, and in private practice helping animals and the people responsible for them navigate laws and legal disputes. In response to the growth of animal law as a discipline, law schools across the continent have started offering classes in animal law, conferences are regularly held and association sections have been formed. To support those interested and practising in the field, we are working to start an Ontario Bar Association section in animal law to provide networking functions and programming. Ontario would be following in the footsteps of British Columbia as the second province with a Canadian Bar Association animal law group. Because the CBA is a member-driven organization, your opinion matters. If you are a lawyer or law student in Ontario and would like to see the creation of an animal law section sign our petition and join our list now at: http://bit.ly/AnimalLaw. Nicholas dePencier Wright is a Toronto-based lawyer and is a founding director of Lawyers for Animal Welfare (LAW), online at www.lawyersforanimalwelfare.com.

June 2011 | Briefly Speaking • En Bref

In Memoriam

John Tory 1930 – 2011 The accolades came fast and furious as word spread of the sudden and unexpected death of John Tory Sr. on Saturday, April 2, 2011. Mr. Tory Sr. had been vacationing in Florida at his winter home. He was apparently in good health, taking in a golf game the day before his death. He was felled by complications from a stroke, but died peacefully with his family by his side. Though John Tory Sr. never sought the limelight, his powerful intellect and uncanny business acumen helped shape the financial empires of two of Canada’s most wealthy and well known families. He provided counsel to Ted Rogers as a trusted advisor behind the development of one of Canada’s largest media empires, the Rogers Communications Corporation.

The other family he is also most closely associated with is the Thomsons, first Roy, then Kenneth and lastly David. Tory Sr. advised three generations of Thomsons as they built a fortune that started humbly with the Timmins Daily Press and is now estimated to be the largest in Canada, somewhere in the neighbourhood of $20 billion.

John Tory Sr. was also a lawyer and a longtime member of the Ontario Bar Association. His children and peers say he was most proud of the law firm he founded with his twin brother Jim, Torys LLP, which has become an iconic Bay St. institution. It has been said that there was no more influential figure in wealth creation in Canada than this modest gentleman. His funeral drew a who’s who of business and civic leaders, politicians, and family friends. Honorary pallbearers included Edward Rogers III and David Thomson, third Baron Thomson of Fleet. Former Prime Minister John Turner was present as was former Premiers Mike Harris and David Peterson. Toronto Mayor Rob Ford was also in attendance along with Mississauga Mayor Hazel McCallion. Former business colleague and his successor at Thomson, Geoffrey Beattie was the only non family member to eulogize Tory Sr., saying the challenge at some funerals is to come up with something nice to say; “with John, the only challenge is what to leave out.”

John Tory Sr. led an exemplary life. He leaves behind his wife of 58 years, Liz, his sister Virginia Denton and twin brother Jim, children John and daughter-in-law Barbara, Jennifer, Jeffrey and daughter-in-law Sarah and Michael and daughter-in-law Jennifer, grandchildren John and wife Melanie, Christopher, Susan and George Tory, Elizabeth and Alexandra Mingay, Jessica, Nicholas, Annabel, Olivia and Robin Tory, Max, Adam, Felix and Griffin Tory and great-grandchildren Jack and Isabel Tory. Briefly Speaking • En Bref | June 2011

John Tory

Margaret Turvey Haig 1945 – 2011 Long time OBA supporter Margaret Haig passed away on April 1, 2011 in her 65th year. She is survived by her two sons, Andrew Haig and Douglas Haig, and by her husband, Robert Haig. Margaret was born November 28, 1945 to Eleanor and George Turvey. She had two brothers, Edward and David. She graduated from the University of Western Ontario Law School in 1973, and established a private practice to which she devoted herself for almost three decades. A three-term Treasurer of the Ontario Bar Association, and active member of the University Women’s Club of Toronto, Margaret was heavily involved in business and professional organizations throughout her life. Margaret was well known for her love of travel, gardening and cultural development, and was infamous for her attempts to expand the artistic palate of her family and friends. Margaret is remembered fondly by her colleagues at the OBA and will be dearly missed.

President’s Message

Professional Ethics Education Is All In the Mind Lee Akazaki

Example #1 – Children Children behind a two-way mirror watch Molly, a toddler, hide a toy behind a chair and wander off. While she is out of the room, the researcher moves the toy to a bookshelf. When asked where Molly will look for her toy upon returning, pre-school children predict the new location. Children four and older begin to understand “false belief” and predict Molly will look in her original hiding place. Example #2 – Lawyers Zach, a new lawyer, is excited his senior partner, Kim, has asked him to act in a new employment law file after a routine conflicts check. While reviewing the client’s papers with Zach, Kim sees a corporate search report for the client’s employer ABC Co., listing Kim’s best friend on the board of directors. Kim tells the client he will be in good hands with Zach, who will have carriage of the file. She leaves the meeting, believing none will be the wiser.

The school-age child, beginning to understand Molly’s false belief, can use this new skill to help her locate the toy. He can also use it to retrieve the toy for himself after Molly gives up the search. Kim’s choice, to stay quiet about the potential conflict of interest, involves a similar acquired mental skill. Legal ethics and professionalism are all about choices lawyers make in settings featuring disparity of knowledge.

Lawyers across Ontario are openly questioning the usefulness of the mandatory three-hour annual dose of ethical-professional continuing professional development (CPD). Their scepticism may not be unfounded. Ethics taught badly may not result in good behaviour, and indeed might encourage manipulation or avoidance of the rules. Critics of the Law Society’s three-hour requirement do not mean to say we should 6

not be teaching professionalism and ethics. We in the OBA, as the Bar’s leaders, must transform their scepticism into profession-wide interest in the way we teach this subject, both in law school and in CPD.

The purpose of my comparison between the toddler and senior lawyer is to demonstrate how acquired cognition—in this case the ability to distinguish another’s honestly-held false belief—is the source of choice-making, i.e. ethics. Ideally, we would derive rules of conduct from experience, and not experience from rules. Behind every important rule of professional conduct is the lawyer’s privileged access to information, client property or evidence. (The temporarily displaced toy can also be the analogue of the daylight loan from a lawyer’s trust account.) If we simply teach our members to follow rules of ethJune 2011 | Briefly Speaking • En Bref

President’s Message

ics, we always find ourselves a step behind the public we serve. If, however, we teach them how to respond thoughtfully to difficult relations and outcomes, we will effectively restore lawyers to the position of society’s leaders and trusted advisers. Voilà! If only it were that simple.

Lawyers are human, too

We cannot hope to improve our culture of professionalism until we first accept that lawyers’ professional failures stem from their humanity. Psychological research pioneered in Ontario suggests most people waver between strict ethical conduct and self-interest, even though they consider themselves ethical and even though they know unethical conduct will usually go unpunished. This is the terrain of most professional conflict in the law. Moreover, it is a thought process that zoologists have documented in Chimpanzees and other higher order animals. Not only are they capable of it, but they also order their conduct based on it. Conversely, animals more dependent on instincts (eg., that of the herd, or of pack hunting), rely more on hierarchy than on independent relation-building. (Indeed, famous examples of unethical behaviour among humans stem from blind following of orders. Rules are not intrinsically good.) The anthropological study of ethical behaviour must be adapted to the legal setting by working outward from the relationships lawyers must navigate. Common to the OBA Life After Law School events I have attended is recognition that professionalism is as important to a successful career as legal ability. New lawyers demonstrate a thirst for learning how to behave in the “real world.” They would represent a squandered opportunity to develop a new culture of legal ethics, if we heed calls for the abolition of the three-hour requirement. Let’s not take the easy way out.

Keen observers of the CBA and Law Society codes know they start with the premise that legal ethics are shaped by the relations lawyers encounter in practice: with clients, with each other, with the courts and with the public. The codes actually reveal a sophisticated theory of mind. The codes have not been plucked out of the ether and should not be taught as we traditionally teach holy scripture. As Canadian law school icon Harry Arthurs told the CBA National last year, “Sending people to Sunday school is not a good way to teach them to behave ethically.” A better way of teaching ethics is to do so, not by memorizing written codes, but by studying actual or simulated lawyer dilemmas.

• We want to know the reason for learning something. • We internalize learning by reference to experience.

• Learning must be relevant to our work or personal interests. • We learn professionalism through problem-solving rather than content-oriented instruction.

Some will observe that this is similar to the model we had, and gave up, when the Law Society replaced live training with self-study. The cognitive development examples at the outset of this article, and many like them, tell us self-study cannot train minds to think ethically. Ultimately, we learn through experience, whether actual or classroom-based. We owe it to ourselves and to the public to develop and invest in post-call professionalism training. We must make it available to every lawyer in the province. If need be, three hours at a time.

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In March of this year, U of T Law held a groundbreaking workshop called Teaching Professionalism. I was startled to learn there is almost no research and development, from an educational perspective, on training professionalism and ethics specifically with lawyers as learners. But there is no need to reinvent the wheel. We can start with what educators already know about grown-ups. First, the lawyer qua learner must displace the client as the focus of the teaching. This done, research-backed general adult education principles apply: Briefly Speaking • En Bref | June 2011

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Message du président

Enseigner l’éthique professionnelle : tout est dans la tête Lee Akazaki Exemple 1 : Les enfants Des enfants derrière une glace sans tain observent Molly, une toute-petite qui commence à marcher qui cache un jouet derrière une chaise et qui s’éloigne de celui-ci. Alors qu’elle s’absente de la pièce le spécialiste déplace le jouet sur une étagère. Alors qu’on leur demande où Molly va chercher son jouet à son retour, les enfants d’âge préscolaire prédisent le nouvel emplacement Les enfants de quatre ans et plus comprennent la notion de “fausse croyance” et prédisent que Molly va chercher le jouet où elle l’a caché. Exemple 2 : les avocats Zach, un nouvel avocat, est heureux que son associée principale, Kim, lui ait demandé de travailler sur un nouveau dossier de droit du travail suite à un conflit après un contrôle de routine. Lors de l’examen des documents du client avec Zach, Kim voit un rapport de recherche d’entreprise d’ABC Co., l’employeur du client, ayant le meilleur ami de Kim sur la liste du conseil d’administration. Kim dit au client qu’il est entre de bonnes mains avec Zach qui a la responsabilité du dossier. Elle quitte la réunion en pensant que ni le client ni Zach ne découvriront le conflit d’intérêt . L’enfant d’âge scolaire qui commence à comprendre la fausse croyance de Molly peut utiliser cette nouvelle compétence pour l’aider à trouver le jouet. Il peut également l’utiliser pour récupérer le jouet pour lui-même après que Molly ait abandonné la recherche. Le choix de Kim de rester discrète à propos du conflit d’intérêts potentiel implique une capacité intellectuelle acquise similaire. L’éthique juridique et le professionnalisme correspondent à des choix que les avocats font dans des contextes où il y a disparité des connaissances.

Les avocats et avocates de l’Ontario mettent ouvertement en doute l’utilité de la dose annuelle obligatoire de trois heures de formation continue en éthique professionnelle. Leur scepticisme n’est peut-être pas sans fondement. Un mauvais enseignement de l’éthique peut ne pas conduire à un bon comportement et pourrait même encourager la manipulation ou l’évitement des règles. Les opposants aux trois heures imposées par le Barreau n’impliquent pas que nous ne devrions pas enseigner le professionnalisme et l’éthique. Nous, à l’ABO, en tant que dirigeants du Barreau, devons transformer leur scepticisme en un intérêt pour la profession dans son ensemble et nous devons changer la manière dont nous enseignons ce sujet, tant à la faculté de droit que lors de la formation continue. Le but de ma comparaison entre les tout-petits et l’avocate principale est de montrer comment la connaissance acquise, c’est-à-dire ici la capacité d’envisager la fausse croyance tenue par autrui, est à la source des choix que l’on fait, à savoir l’éthique. L’idéal serait que nous puissions tirer des règles de conduite à 8

partir de l’expérience et non pas l’inverse. Derrière chaque règle importante de conduite professionnelle se trouve l’accès privilégié de l’avocat à l’information, les biens ou les preuves des clients. (Le jouet déplacé provisoirement peut également être l’analogie d’un prêt ouvert du compte en fiducie d’un avocat. ) Si nous nous contentons d’enseigner à nos membres de suivre les règles d’éthique, nous demeurerons en retrait du public que nous servons. Cependant, si nous apprenons à nos avocats et avocates à réagir avec prévenance face aux relations et incidences difficiles, nous redorerons le blason des avocats dans leur rôle de dirigeants et conseillers de confiance de notre société. Voilà ! Si seulement c’était si simple.

Les avocats sont tout simplement humains.

Nous ne pourrons améliorer notre culture de la qualité si nous n’acceptons pas d’abord l’idée que les échecs professionnels des avocats proviennent du fait qu’ils sont humains. La recherche en psychologie mise au point en Ontario suggère que la plupart des gens hésitent entre une conduite éthique stricte et leur propre intérêt, bien qu’ils considèrent leur conduite conforme à l’éthique et savent qu’une conduite contraire à l’éthique est rarement punie. Ceci constitue le lieu où les conflits professionnels au sein de la loi sont les plus fréquents. Qui plus est, c’est un processus cognitif que les zoologistes ont documenté chez les chimpanzés et les espèces animales supérieures. Non seulement en sont-ils capables, mais ils basent également leur comportement sur ce processus. Inversement, les animaux qui suivent plutôt leur instinct (p. ex., ceux qui vivent en troupeaux ou en meutes) June 2011 | Briefly Speaking • En Bref

Message du président comptent davantage sur la hiérarchie que sur la constitution de relations indépendantes. (Des exemples célèbres de comportement non éthique chez l’homme ont été démontrés comme provenant d’une obéissance aveugle aux ordres. Les règles ne sont pas intrinsèquement bonnes. ) L’étude anthropologique du comportement éthique doit être adaptée à l’environnement juridique en commençant par les rapports avec autrui que les avocats établissent. Démontré lors de réunions de l’OBA auxquelles j’ai assitées après la faculté de droit est le fait que le professionnalisme joue un rôle aussi important que la connaissance juridique pour réussir une carrière. Les nouveaux avocats sont avides d’apprendre comment se comporter dans le « monde réel ». Si les trois heures obligatoires sont abolies comme certains le demandent, on gâchera une occasion opportune de développer une nouvelle culture de l’éthique juridique. Ne choisissons pas la solution de facilité. Les observateurs avisés de l’ABC et les codes du Barreau partent du principe que l’éthique juridique est basée sur les relations que les avocats établissent dans la pratique: avec leurs clients, entre avocats, avec les tribunaux et avec le public. Les codes révèlent en fait une théorie complexe de l’esprit. Les codes ne tombent pas du ciel et ne devraient pas être enseignés sur le même principe que l’écriture sainte. Comme Harry Arthurs, notable des facultés de droit canadiennes, a expliqué à l’ABC nationale l’an dernier, « Demander aux gens de suivre les classes de religion du dimanche n’est pas la meilleure façon de leur faire adopter un comportement éthique. » Une meilleure façon d’enseigner l’éthique est non pas par la mémorisation de codes écrits, mais en étudiant des dilemmes réels ou simulés auxquels les avocats se trouvent confrontés.

L’avenir est prometteur, pratique et conversationnel!

cherche et de formation, d’un point de vue éducatif, sur la façon d’enseigner le professionnalisme et l’éthique notamment aux étudiants en droit. Pourtant il n’y a pas de lieu de réinventer la roue. Nous pouvons commencer par ce que les éducateurs connaissent déjà des adultes. D’abord, l’avocat en tant qu’apprenant doit convenir que le client est au cœur de la leçon. Cela fait, les principes généraux de l’éducation des adultes soutenus par la recherche s’appliquent : • Nous voulons établir la raison pour laquelle on doit apprendre quelque chose. • Nous retenons une leçon en la comparant à l’expérience.

• Pour apprendre il faut qu’il y ait une relation avec notre travail ou avec nos intérêts personnels.

• Nous apprenons le professionnalisme par la résolution de problèmes plutôt que si l’enseignement est uniquement axé sur le contenu.

Certains remarqueront que ce modèle est proche de celui que nous avions et que nous avons abandonné, lorsque le Barreau a remplacé la formation pratique par l’ autoformation. Les exemples de développement cognitif du début de cet article et beaucoup d’autres similaires nous confirment que l’autoformation ne peut pas conduire les esprits à penser sur un plan éthique. Au bout du compte, nous apprenons par l’expérience qu’elle soit réelle ou en salle de classe. Nous devons au public et à nousmêmes de développer et d’investir dans la formation professionnelle. Nous devons mettre cette fomation à la disposition de tous les avocats de la province. Et si le besoin se fait sentir, en périodes de trois heures à la fois.

En mars dernier, la faculté de droit de l’Université de Toronto a organisé un atelier novateur appelé Teaching Professionalism. J’ai été surpris d’apprendre qu’il n’y a presque pas de re-

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Briefly Speaking • En Bref | June 2011

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ADR Civil Litigation Corporate/Commercial Environment Estate

spotlight on sections

Natural Resources and Energy Law Carlton Mathias

nergy issues and issues on whether and how to exploit natural resources are more critical today than ever before. Ontario’s law and policy in these areas does not develop without a close eye on development in the world’s mature and emerging markets.

The recent catastrophe in Japan, and more particularly the Fukushima Daiichi plant, serves as a poignant reminder of how interrelated energy and natural resource issues are around the world. Out of these two events, in just a matter of moments, the world began to question if the ‘nuclear renaissance’ could survive just as nuclear new build EA hearings got underway near Darlington. Similarly, TSX-listed uranium producers and companies linked to the nuclear industry saw their share prices tumble over night and uranium production needs have new levels of uncertainty. WHO ARE WE?

The Natural Resources and Energy Section has approximately 325 members, with lawyers practising commercial law, securities law, regulatory law and litigation to name but a few. Our members practise in private firms from the few in number to the large and international firms. Our members are also in practice with public and private companies and with government and regulatory entities. Not surprisingly, the members of the section’s executive have as diverse a professional background as the section members. WHAT DO WE DO?

The Natural Resources and Energy Section deals specifically with matters of legal reform, legal education and management relating to energy and natural resources. This is achieved by presentations of legal programs, the publication of our section’s newsletter and representation to government on topics of current concern. Our Section newsletter, The Resource, reprises the highlights of our recent education programs, surveys the issues in developing matters and events, or offers the commentary or opinion of authors writing in the energy and natural resource sectors. 10

In the 2010 – 2011 year, we have presented on understanding Ontario’s new Far North Act, the Supreme Court of Canada’s October 2010 decision in Rio Tinto Alcan relating to the role of administrative tribunals in the context of aboriginal consultation, and near the end of April we have a program addressing developments in disclosure obligations affecting mineral projects. Our annual end-of-term dinner and program is scheduled for June, with details to be announced shortly. Our programs this year have included attendance in person and by webinar and have included lively question and answer sessions. In the recent past, we have presented programs respecting energy law on nuclear power and the integrated power system plan for Ontario, and respecting natural resource law on “Mining 101” and financing alternatives in difficult markets, as a few examples. Our Section has also presented programs in conjunction with other sections such as Environmental Law and Municipal Law and many of these program materials are available for downloading from the Section’s pages on the OBA website. BECOME INVOLVED

The opportunities to become involved in the section are many. You can attend our legal education programs in person where you’ll have a chance to informally chat with likeinterested lawyers or you can follow along by webinar and still interact with the speakers and participants – an excellent option if you’re a long way a way from the conference centre. The Section newsletter editor is always interested in receiving submissions for The Resource and the Section Executive is highly welcoming of members joining the team who have a view to learning or contributing with enthusiasm, or expertise, or both! Carlton Mathias is assistant general counsel at Ontario Power Generation and is responsible for regulatory matters primarily with respect to matters before the Ontario Energy Board and the Canadian Nuclear Safety Commission. He is chair of the OBA Natural Resources & Energy Section.

June 2011 | Briefly Speaking • En Bref

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Briefly Speaking • En Bref | June 2011

5/4/11 9:45 AM

L’Université d’Ottawa devrait-elle se désigner en vertu de la Loi sur les services en français ? Par Albert Nolette et Matthew Létourneau

Saviez-vous qu’il n’y a qu’une seule institution postsecondaire en Ontario qui soit désignée comme un organisme en vertu de la Loi sur les services en français, LRO 1990, c F-32 (« LSF ») de l’Ontario ? Ironiquement, ce n’est pas l’Université d’Ottawa, qui s’affiche comme « l’Université canadienne », mais plutôt le Collège Boréal, collège communautaire et homogène francophone constitué de plusieurs campus à travers le nord de l’Ontario et à Toronto. Si le choix d’obtenir la désignation en vertu de la LSF est hautement symbolique, il constitue en outre un geste de solidarité avec les deux cent dix-huit (218) organismes et institutions, bilingues et homogènes francophones, qui sont déjà désignés au terme de la LSF.

À notre avis, l’Université d’Ottawa devrait, elle aussi, demander la désignation en vertu de la LSF à l’instar du Collège Boréal.

Aux termes de son article 5, la LSF prévoit « que chacun a droit à l’emploi du français pour communiquer avec le siège central ou l’administration centrale d’un organisme désigné et pour en recevoir les services ». Il s’agit là d’une garantie de pouvoir communiquer et de se faire servir en français par toutes les branches de l’appareil gouvernemental de l’Ontario. Cette garantie s’exerce notamment grâce aux articles 7 et 8 de la LSF, qui prévoient qu’une limitation de services en français n’est permise que lorsque la mesure s’avère raisonnable et nécessaire et si elle ne porte pas atteinte à l’objet général de la loi. D’après l’honorable Madeleine Meilleur - ancienne diplômée de la Faculté de droit de l’Université d’Ottawa, députée d’Ottawa-Vanier à l’Assemblée législative de l’Ontario et ministre des Services sociaux et communautaires et ministre déléguée aux Affaires francophones - les institutions bilingues ont avantage à obtenir la désignation pour maintenir leurs services en français. Par exemple, comme la Cour d’appel l’a noté dans Lalonde c. Ontario, si l’Hôpital Montfort a pu maintenir ses services en français, c’est en partie grâce à la désignation en vertu de la LSF. 12

Conformément au paragraphe 9(2) de la LSF, les institutions postsecondaires ou leurs facultés, comme l’Université d’Ottawa, doivent consentir à leur désignation en vertu de la LSF. Selon nos recherches, le recteur D’Iorio en 1987 a proposé que l’Université d’Ottawa obtienne la désignation, mais ses tentatives ont échoué pour des raisons politiques.

Il nous semble inconcevable que l’Université d’Ottawa, l’institution postsecondaire offrant le plus important choix de cours en français hors Québec, n’ait pas encore consenti à sa désignation en vertu de la LSF. D’autant plus que sa loi habilitante, Loi concernant l’Université d’Ottawa, prévoit que sa mission consiste à « favoriser le développement du bilinguisme et du biculturalisme » et à « préserver et développer la culture française en Ontario ».

D’aucuns craignent que la désignation n’entraîne une perte de liberté académique. D’autres encore s’inquiètent de l’ingérence administrative du Commissaire aux services en français de l’Ontario. Ces craintes nous apparaissent mal fondées. L’Université d’Ottawa conserverait toute sa marge de manœuvre académique et gagnerait des motifs supplémentaires pour protéger ses budgets durant des périodes de compressions économiques. D’ailleurs, dans la foulée d’un rapport publié par le Groupe de travail sur le bilinguisme de l’Université d’Ottawa, la Commission permanente des affaires francophones et des langues officielles a été créée. Selon cette dernière, des taux d’assimilation accrus au sein de l’Université d’Ottawa font craindre pour l’état du français dans cette institution à moins que certains efforts ne soient pris pour contrer ces tendances. La désignation en vertu de la LSF figurait parmi ses recommandations. À tout le moins, les auteurs du présent article sont convaincus que cette police d’assurance est le geste solidaire et symbolique nécessaire vers une université davantage « canadienne ». Albert Nolette et Matthew Létourneau sont tous deux étudiants du Programme de common law en français à l’Université d’Ottawa.

June 2011 | Briefly Speaking • En Bref

Opinion

Should the University of Ottawa Be Designated Under the French Language Services Act? By Albert Nolette and Matthew Létourneau

Did you know that only one post secondary institution in Ontario is designated as an agency under the French Language Services Act, RSO 1990, c. F-32 (FLSA) of Ontario? Ironically, it is not the University of Ottawa, which calls itself “Canada’s university,” but Collège Boréal, an exclusively Francophone community college made up of a number of campuses across northern Ontario and in Toronto. Although the decision to be designated under the FLSA is highly symbolic, it is also a gesture of solidarity with the 218 organizations and institutions, both bilingual and exclusively Francophone, which are already designated under the FLSA. In our opinion, the University of Ottawa should also request to be designated under the FLSA, following the example of Collège Boréal.

Section 5 of the FLSA provides that “[a] person has the right to communicate in French with, and to receive available services in French from, any head or central office of a designated agency.” This is a guarantee that people can communicate and be served in French by all branches of the Ontario government. This guarantee is in effect thanks in particular to sections 7 and 8 of the FLSA, which state that limiting French-language services is only permitted when deemed reasonable and necessary, and provided that it does not derogate from the general purpose of the Act. According to the Honourable Madeleine Meilleur—a graduate of the University of Ottawa’s Faculty of Law, MPP for Ottawa-Vanier in the Legislative Assembly of Ontario, Minister of Community and Social Services and Minister Responsible for Francophone Affairs—bilingual institutions are better off obtaining the designation in order to maintain their services in French. For example, as the Court of Appeal noted in Lalonde v. Ontario, if Monfort Hospital was able to maintain its services in French, it is due in part to its designation under the FLSA.

must consent to being designated under the FLSA. According to our research, President D’Iorio proposed in 1987 that the University of Ottawa obtain the designation, but his attempts failed due to political reasons.

It seems inconceivable to us that the University of Ottawa, the postsecondary institution with the largest selection of French courses outside Quebec, has not yet consented to being designated under the FLSA. Especially since its enabling statute, the University of Ottawa Act, states that its mission is to “further bilingualism and biculturalism” and to “preserve and develop French culture in Ontario.” Some fear that the designation will lead to a loss of academic freedom. Others worry about administrative interference by Ontario’s French Language Services Commissioner. We consider these fears to be unfounded. The University of Ottawa would retain its academic flexibility and have more reason to protect its budget during times of economic cutbacks. Moreover, the Standing Committee on Francophone Affairs and Official Languages was created in the wake of a report published by the Groupe de travail sur le bilinguisme de l’Université d’Ottawa. According to the Standing Committee, increased assimilation rates at the University of Ottawa are sparking fears about the state of French in this institution if certain measures are not taken to counter these tendencies. Designation under the FLSA was among the recommendations. At a minimum, the authors of this article are convinced that this insurance policy is the symbolic gesture and show of solidarity needed for a more “Canadian” university.

Albert Nolette and Matthew Létourneau are both new students in the French Common Law Program at the University of Ottawa.

In accordance with subsection 9(2) of the FLSA, postsecondary institutions or their faculties, like the University of Ottawa, Briefly Speaking • En Bref | June 2011

Charles Smith

Dr. Charles Foolish pride or malevolent evil? The former Dr. Charles Randal Smith wreaked havoc in Ontarioâ&#x20AC;&#x2122;s criminal justice system: He destroyed many lives; he turned innocent parents and caregivers into killers.

How did we let this happen? 14

Harold Levy June 2011 | Briefly Speaking â&#x20AC;˘ En Bref

Charles Smith

he former Dr. Charles Randal Smith wreaked havoc in Ontario’s criminal justice system: He destroyed many lives; he turned innocent parents and caregivers into killers; he had a propensity for finding murder where it did not exist. He believed his role as pathologist was to support the Crown attorney, make the case look good and refute the defence counsel. And he single-handedly was probably responsible for more miscarriages of justice in the province than any other individual.

After investigating him for almost a decade, I have no doubt that Charles Smith was able to do so much harm because the very people who were supposed to protect the public from fraudulent experts such as Smith—the province’s prosecutors, defence lawyers and judges—were skillfully manipulated by him into believing that he was a brilliant, experienced, impartial and infallible forensic pathologist (when he was nothing of the sort) and dropped their guard. My opinion is shared by Ontario Court of Appeal Justice Stephen Goudge, who in his report on the independent public inquiry he conducted into many of Smith’s cases, stated that the Bar must share responsibility for the harm caused. Justice Goudge said that Smith, as the pathologist giving expert evidence, must bear “primary responsibility” for the tragic outcomes of his cases, and that “those charged with overseeing his performance [an apparent reference to his superiors in the chief coroner’s office] cannot evade responsibility.” But Justice Goudge went on to conclude that, “Indeed, neither can other participants in the criminal justice system - Crown, defence and the court. Each had an important role to play in ensuring so far as possible, that results in the criminal justice system were not affected by flawed expert testimony, including that of forensic pathologists.”

smith The Canadian Press/Frank Gunn

Some of the most agonizing testimony at the Goudge Inquiry came from Patrick LeSage, former Chief Justice of the Superior Court of Justice of Ontario, who rhetorically asked, “Did I question the expertise sufficiently?”

“Fair, Objective and Non-Partisan” Rules of Civil Procedure Amended James Morton At Common Law, an expert witness is expected to provide an objective, unbiased opinion with respect to the matters within his or her expertise: Beasley v. Barrand, 2010 ONSC 2095. There is no doubt that the duty of an expert witness extends across all areas of law - civil, criminal, family and administrative. Nevertheless, largely as a result of the Charles Smith affair, where a prominent and repeated expert witness acknowledged seeing his duty as towards the party hiring him, the Rules of Civil Procedure have been amended. The Rules now expressly state that an expert must provide evidence that is “fair, objective and non-partisan” (R. 4.1.01). Further, each expert report must now be accompanied by an acknowledgement signed by the expert of that duty to be fair, objective and impartial (Form 53). The duty, long established at Common Law, is now codified.

“Did defence counsel or Crown counsel as the case may be, question the expertise, the basis, the underpinnings of it, as we ought to have?” Justice LeSage continued. “In many cases, no, we didn’t.” Justice LeSage explained that as a judge working in an adversarial system he tended to sit back and leave determination of these questions to counsel, “and if counsel didn’t raise it, I probably said, well it’s the adversary system, I’m not the advocate for either the Crown or the defence.”

Briefly Speaking • En Bref | June 2011

Charles Smith Sherry Sherret, for one, pleaded not guilty on January 4, 1999, to murdering her 4-month old son Joshua but was convicted of infanticide on the basis of an American-style nolo contendere plea, which did not require her to admit that she had intentionally killed her child (which she fervently denied). The rarely used plea was based on Smith’s opinion that the cause of death was asphyxia; his claim that he had discovered a microscopic skull fracture two months after the post mortem, and his finding of marks indicating hemorrhages in Joshua’s neck.

The Canadian Press/Adrian Wyld

We now know from independent analysis by a panel of experts and from the Goudge Inquiry that there was utterly no evidence of asphyxiation—and that the remaining injuries he identified as signs of injuries inflicted by Sherret were caused by none other than Smith himself during dissection.

“Charles Smith’s assault on Ontario’s criminal justice system should haunt every member of the bar, including prosecutors, defence lawyers and judges” Ms. Sherret was defended by Bruce Hillyer, an experienced, conscientious criminal lawyer who found himself facing an enormous dilemma as he approached trial. Hillyer realized that the Crown’s case rested primarily on the opinion of Smith, “who at the time had a very high reputation in his field,” and according to others he talked to, including a judge and a forensic pathologist, was “a great witness.” Discredited pathologist Dr. Charles Smith waits to deliver testimony at the Goudge Inquiry, Jan. 28, 2008

“I think it’s fair to say, however,” he added, “that there is a, well, it’s already been said, that there’s a great responsibility for the adjudicator to make an informed decision, and how do you make an informed decision if the evidence has not been adduced before you?”

While I empathize with the problems judges face in an adversary system of criminal justice, my own view is that Justice LeSage’s explanation covers only one half of the story. The other half is that some judges, like some of the other actors in the system—including journalists who abandoned their “watchdog” function by uncritically idolizing Smith and helping him secure his god-like public image—bought into the myth of the great forensic pathologist and failed to do their job.

One of the worst consequences of the canonization of Smith was that several persons pleaded guilty to lesser offences they had not committed in connection with the death of their children for a perverse reason—to avoid almost certain lifeimprisonment for murder, at the hands of the renowned Dr. Charles Randal Smith. 16

But Sherret fervently protested her innocence and Hillyer did not believe that the Crown could establish that Joshua had died as a result of an unlawful act if the matter went to trial.

Not having a crystal ball, he could not know that years later the Ontario Court of Appeal would quash the conviction and acquit Sherret after accepting fresh evidence which disproved every aspect of Smith’s opinion—and after finding that Joshua had likely suffocated after being placed in an unsafe sleeping environment.

Ultimately, Sherret instructed him to accept the Crown’s eleventh hour offer to drop the murder charge and accept a nolo contendere plea to infanticide on the basis that she had been suffering from post-partum depression at the time of Joshua’s death. Although there was no agreement on sentence, Hillyer would push for a non-custodial disposition and the risk of a life-sentence was avoided.

Hillyer told this writer that even though he had a top pathologist in his corner to counter Smith’s evidence, “Smith’s reputation was still such that a nolo contendere was a no-brainer.”

Hillyer would later explain in a letter to child welfare authorities that “the compromise was seen as a way out for both sides. The Crown fearing they couldn’t get a conviction of any kind, June 2011 | Briefly Speaking • En Bref

Charles Smith experienced in this case—where it was ultimately established that Joshua had died a natural death—when he added in the letter that, “Some cases come back to haunt you, and this is one of them.” Charles Smith’s assault on Ontario’s criminal justice system should haunt every member of the bar, including prosecutors, defence lawyers and judges.

Never again should we fail to accept that there may be so-called “expert witnesses” like Smith, who see themselves as members of the prosecution team and set out to subvert the criminal process in order to ensure convictions. CP Photo/Toronto Star/ Tara Walton

Our eyes have indeed been opened.

Harold Levy is an Ontario lawyer who received a Michener Certificate of Merit in 2005 for his Toronto Star exposés on Charles Smith. He is writing a book on the Smith case and Ontario’s criminal justice system.

The Association in Defence of the Wrongly Convicted

Sherry Sherrett, convicted in 1999 of killing her infant son, Joshua

and the defence fearing a conviction for murder, while not justified, would result in a lengthy period of incarceration.” Superior Court Justice R.G. Byers lashed out at Sherret as he sentenced her to one year in prison followed by two years probation, saying:

“At the end of the day, only she knows why she did it – and she is not telling,” he said. “Instead, she denies her guilt and shows no remorse. “Who speaks for Joshua? Is his life so unimportant that his mother—who killed him without explanation; without apparent remorse—should go free without punishment? What signal does this send to the accused; to this community? Well, I speak for him now. He was important. He was a human being. He was only four months old. And, madam, you killed him. In my book, that means you go to jail.” Byers was not the only judge to be put in the unfortunate position of having to sentence someone who turned out years later to be utterly innocent but had handed themselves over to the Court on a lesser offence to avoid the risk of almost certainly being convicted of a murder they did not commit based on the opinion of the revered Dr. Smith.

Sherry Sherrett-Robinson contacted The Association in Defence of the Wrongly Convicted (AIDWYC) in January 2006, after reading about the now disgraced and discredited Dr. Charles Smith. Dr. Smith had played a substantial role in Ms. Sherrett-Robinson’s 1999 conviction for infanticide. At her preliminary hearing Smith speculated that her son Joshua’s death had been non-accidental. She was initially charged with first-degree murder and her surviving son, Austin, was removed from her care. With the consent of the Crown, Ms. Sherrett-Robinson sought an extension of time for leave to appeal her conviction. She was formally acquitted by a three-judge panel of the Ontario Court of Appeal on December 7, 2009. Despite her acquittal, Ms. Sherrett-Robinson does not have custody of Austin. AIDWYC has also been active in the cases of William Mullins-Johnson, Tammy Marquardt and Dinesh Kumar, all of whom were convicted of homicide under the expert witness of Dr. Charles Smith. In 2008, the Ontario Bar Association presented AIDWYC with the OBA President’s Award, which recognizes the achievements of an individual Canadian or Canadian organization that has made a significant contribution to the advancement of justice. The AIDWYC is a non-profit organization dedicated to identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit and to preventing such injustices in the future through education and reform. AIDWYC needs support to continue the work of reviewing and litigating claims of wrongful convictions. For more information about membership and supporting AIDWYC please visit www.aidwyc.org.

Bruce Hillyer did not try to disguise the personal agony he had

Briefly Speaking • En Bref | June 2011

Litigating Lottery Claims Greed, Tall Tales and How to Avoid the Courtroom in the First Place Jeffrey S. Percival

any Canadians have vivid dreams of winning the “big one”, namely the jackpot prize in one of the many lottery games run by the provincial lottery corporations. Recognizing that the odds of winning a substantial jackpot are particularly remote, we choose to participate in office lottery pools as a means of benefitting from pooled contributions to purchase a greater number of tickets. In theory, the idea of an office lottery pool is a sound one… until the office wins a major prize and the pool turns out to be less than well-organized. How office lottery pools are supposed to work

According to the Ontario Lottery and Gaming Corporation (OLGC), “group play” is encouraged as a means to have “more chances to win”. To facilitate this, the OLC publishes online a “Lottery Group Play Form”. The form includes space for the following information for each group participant: names, numbers chosen (including a box to check for Quick Pick, which is a set of randomly generated numbers), signature, phone number, amount contributed to pool and “paid” indication. The OLC advises that the person who coordinates the office lottery pool, known in OLGC parlance as a “group play captain”, should ensure that certain steps are taken to confirm participation in a particular draw. Ideally, the group play captain would fill out the group play form for each draw and get signatures and money from each participant. Given the relative hassle of all of this coordination for a very remote chance at a jackpot, many captains may use less thorough means of registering participation. Such means may include an e-mail distribution group that contains the names of those who are regular participants. The captain can then e-mail out a copy of that week’s purchased 18

ticket(s) to those who have contributed money by a certain deadline. Group members still need to be consulted on what to do with winnings, if any, including whether winnings get returned pro-rata to group members or re-invested for subsequent draws.

Notwithstanding the recommendations of the OLGC to have a lottery group play form, many group pools are far more informal; this does not necessarily mean they are any less enforceable. Indeed, as noted by Kane J. in the decision of Chamberland v. Provincial [2008] CanLII 67399 (Ont. S.C.),

Presumably among the many office pools that exist, there are varying levels of formality in their operation. Some such arrangements may be reflected in writing with specific terms, while others have little or nothing recorded in writing and operate on the basis of a brief discussion and verbal agreement made over a water cooler or at a lunch room table, as in this case.

The courts have demonstrated a willingness to interpret and enforce verbal pooling agreements between parties on the basis of contract and trust law. Inevitably, lottery disputes that end up in court come down to credibility issues based upon non-written “agreements”. Trials invariably need to sort out issues such as: • Was a particular claimant part of the winning group?

• Did the particular claimant contribute to the group play on a regular basis? If so, did they just miss paying for the one draw? June 2011 | Briefly Speaking • En Bref

• If the particular claimant was a regular contributor who missed payment for the one draw that led to the jackpot, was there an explicit or implicit understanding among the group that another group member would “spot” them (i.e., loan them) the contribution for that week? • What was the behaviour of the individual group members upon being notified of the jackpot win? Did they act like they were all part of the group?

Not surprisingly, many witnesses are called to verify the ownership of the winning ticket. Given the high value of the stakes involved, there is an incentive to have as many witnesses as possible to either enhance or diminish the credibility of the claimant plaintiff(s).

A memorable example of the often questionable credibility of lottery case witnesses appears in the highly readable Ontario decision in Miller v. Curley 2009 CanLII 39065. In that decision, Mr. Justice Quinn shows his clear frustration with the litigants:

After a busy day conducting illegal drug transactions, the plaintiff, the defendant and a mutual friend stopped at a corner store where the defendant purchased some “scratch” lottery tickets. One of the tickets proved to be a $5-million winner.

them both unfit and bring in Family and Children’s Services.

The case is awash in untruths and curiosities. It is a study in good fortune squandered and generosity abused… During this trial, truth was only an occasional visitor…

Notwithstanding that approximately 95% of civil actions in Ontario end up in some form of settlement, it would appear that a greater proportion of lottery disputes go to trial. The reason is quite simple: the sums being fought over are usually much more than the claimant could ever hope to earn in his or her lifetime.

But why does the mere prospect of a lottery lawsuit captivate the general public so much? Is it because we are entranced by people fighting vigorously over something they did not earn, but merely “won” by pure chance? Is it because we love watching people tell twisted and contrived stories to win a big prize? Undoubtedly, lottery litigation shines a very bright light on the particular lengths to which people will go to share in the jackpot. Jeffrey S. Percival, Pallet Valo LLP

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Host Liability Could “BYOB” Save More Than You Think? Juliet Knapton and Mike Brown

s summer arrives, Ontarians look forward to get-togethers, family vacations, cottage getaways and camp cookouts. When you invite friends over for good conversation and a couple cold ones, legal liability is probably the last thing on your mind. But will your guests’ consumption of alcohol and their subsequent negligent acts be visited upon you as the host?

We recently passed the fifth-year anniversary of the Supreme Court of Canada’s (SCC) seminal decision on social host liability in Childs v. Desormeaux, 2006 SCC 18 (CanLII) (“Childs”). Childs was the first case to reach the SCC that addressed whether a social host can be held liable for the actions of their intoxicated guests after they leave the party. In Childs, the defendants hosted a private “Bring Your Own Booze” party on New Year’s Eve in 1998. After leaving the party, an intoxicated guest’s vehicle was involved in a head-on collision with another vehicle. The accident killed one passenger and seriously injured three others in the other vehicle, including the plaintiff, Zoe Childs, who was rendered a paraplegic. Childs sued the defendant driver, the social hosts and their home insurer for $6 million in damages.

At trial, the Court found the social hosts, because of their knowledge of their guests’ previous conduct when drinking, could have foreseen that he might not be capable of driving and might put others at risk. However, it dismissed the lawsuit for public policy reasons. The Court of Appeal and the SCC upheld the trial decision, but on different grounds. The SCC found that the plaintiff’s injury was not reasonably foreseeable by the social hosts because they did not know that their guest was intoxicated and that even if the accident were foreseeable, the social hosts were not liable because they had no duty to act. The Court did not find a private social event to be an inherently dangerous or risky activity. It was not significant whether the social host provided the alcohol or not, as long as the host did nothing to create or exacerbate the risk. The SCC reasoned that unlike commercial hosts, such as bars, restaurants or nightclubs, a private social host is not expected to monitor or otherwise control the alcohol intake of their guests on behalf of the public. The Chief Justice, on behalf of the unanimous Court, wrote: “A person who accepts an invitation to attend a private party does not park his autonomy at the door. The guest remains responsible for his or her conduct.” 20

This is in line with the common law’s general respect for individual autonomy—we don’t require individuals to interfere with another person’s tortious conduct.

Laushway Law Office in Prescott, Ontario, represented the plaintiff in Childs. In an interview with Briefly Speaking, Scott Laushway reminisced on the case that he and his late father, Barry Laushway, took all the way to the Supreme Court of Canada. Laushway noted that he disagrees with how the SCC characterized the factual findings of the trial judge. “[T]hey say, [the trial judge] didn’t make a specific finding that the homeowners knew that [Desormeaux] was intoxicated, and that’s cutting it very finely.” Laushway also commented that the SCC failed to give June 2011 | Briefly Speaking • En Bref

guidance on when a social host might be liable: “We expected a clear answer, a test to follow on when it might be appropriate and when it might not be appropriate.” Regardless, Laushway stated that the case still leaves the door open for future litigants. “There is a sentence or two towards the end of the Supreme Court’s reasons that says in these circumstances, without more, there is no liability. So that screams to me that they’re leaving the door open for a case where they may impose liability . . . it can get tough to distinguish between a commercial host and a social host.” Williams McEnery in Ottawa represented the homeowners in Childs, and defense counsel Eric Williams believes otherwise. He argues that there is a clear distinction between a social host and a commercial host. Beyond the obvious statutory requirements to be a commercial host (like obtaining a license, having insurance coverage, monitoring the alcohol intake and being trained to recognize intoxication) and the fact that a commercial host benefits from the sale of alcohol to the guest, a social host has an inability to protect themselves from almost unlimited liability. And in real life, as the usual homeowner policies would likely exclude coverage for social host liability, this means that people would be at risk for losing their own assets like their house, RRSPs and the like. In our society where—for better or worse—we condone the use of alcohol; the known risks are tolerated. And the risks of alcohol are tolerated by all of society—not by an individual. Williams states: “The Supreme Court unanimously held there was no liability on a social host based on existing tort principles. To find otherwise, either the Supreme Court would have to recognize social host liability as a new tort or it would have to reverse its own decision—which is highly unlikely. I would also add that I know of no other common law host jurisdictions that recognize social host liability unless it is based in statute.” Childs was a rare opportunity to test the boundaries of the law and, indeed, no decisions have significantly changed the approach to social host or commercial host liability since.

Based on his experiences in Childs, Laushway stated that if you are hosting a social party where alcohol is being served, the prudent thing to do is to offer guests a drive home yourself, a cab ride or temporary lodgings in your home. Williams agrees that these are prudent behaviours – but not that they are required by law. The Liquor Control Board of Ontario (LCBO) has a “handy hosting checklist” on their website that suggests: 1. Plan ahead;

2. Limit your own alcohol consumption so you can be alert and be prepared to handle any issues; 3. Provide non-alcoholic beverages and snack food;

4. Have at least one designated driver;

5. Provide for cab fare, bus tokens and/or subway tokens; Briefly Speaking • En Bref | June 2011

6. Recommend guests leave their cars at home; and 7. Plan for overnight guests.

So, as you enjoy a drink with your friends and families this summer, although the social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, one’s moral duty may lie elsewhere. Cheers! The opinions and statements expressed in this article are those of the authors unless otherwise indicated.

Juliet Knapton practises plaintiff side civil litigation at Connolly Obagi LLP in Ottawa. She is past chair of the OBA Young Lawyers’ Division East and co-chair of the OBA Equal Opportunities Committee.

Mike Brown practises real estate law at Perley-Robertson, Hill & McDougall LLP/s.r.l. He is a member of the OBA Young Lawyers’ Division East Executive. He is a past member of the OBA Student Division Executive.

Donaldson v. John Doe One interesting twist was made by the British Columbia Court of Appeal in a commercial liability case where injury occurred after an intoxicated guest left an Oktoberfest party and injured a third party when he threw his arm and souvenir Oktoberfest mug into the third party’s face. In Donaldson v. John Doe, 2009 BCCA 38, the Court found a commercial host owes a duty to third-parties to protect them from alcohol-related injuries caused by intoxicated patrons. Once the duty is found to exist then the decision turned to an analysis of the “specific risk of harm”, in other words, whether there was a breach of the standard of care. Justice Frankel changed the wording in McIntyre v. Grigg, (2006), 274 DLR (4th) 28 (ONCA) at para 23 and stated: Commercial vendors of alcohol have an obligation to monitor a patron’s consumption of alcohol and should have protocols in place to ensure that all reasonable precautions are taken to prevent such patrons from becoming intoxicated to the point where they pose a foreseeable risk to third-parties. Moreover, a commercial host does not escape liability simply by not knowing that the patron became inebriated engaging in foreseeably dangerous conduct; the commercial host is liable if it or its employees knew or ought reasonably to have known in the circumstances that the patron was in such a condition.

This case seems to entrench the duty of the liability of a commercial host to be ever more vigilant over their guests—regardless of the involvement of motor vehicles. 21

Law day

Law Day Filippo Conte “Where are you from?” It’s a common enough question. Another is where are you going? At Law Day, the OBA offers Ontario’s students a possible new direction by exposing Ontario students to our justice system and how our Charter of Rights and Freedoms works. Law Day lets students interact with lawyers across the province who have a vast wealth of knowledge and experience in the practice of law. It’s difficult to quantify, but through early exposure to the law and the legal profession through elementary and secondary school curricula, it’s hoped that Ontario’s students will recognize and come to cherish the rights and freedoms we enjoy in this great country. And maybe through the various programs offered within Law Day and Law Week, they may choose a career in law. Every year, throughout April, the OBA and partner organizations the Ontario Justice Education Network, Association of French Speaking Jurists of Ontario and the Law Society of Upper Canada engage over 10,000 Ontarians through various programs and events that allow participants the opportunity to learn about our justice system.

The reward, for the OBA, comes when we hear about new calls to the bar - lawyers at their convocation- who caught the “legal bug” taking part in our extensive mock trail tournament when they were in high school. It’s that, and the positive feedback received from teachers, students and members of the public that makes Law Day a worthwhile and valuable program at the OBA. Thanks to the Ontario Law Day Committee and countless dedicated volunteers, including Law Day Chair Shelley Timms, Law Day is the success that it is each year. Of course we also 22

benefit from the funding of the Law Foundation of Ontario and ALERT (Advancement of Legal Education and Research Trust).

Among the many programs teachers and students engaged in this year included: The Charter Challenge, Grade 5 Poster Challenge, the “Great Debate”, Elementary School Mock Trails, La Journee du Droit, Law Day Awards, OJEN Law Symposium, and Law in the Community, Phone-a-Lawyer, a Photography Contest, Secondary School Mock Trail Tournament, Stakeholder Support Program and a Web-cast Mock Hearing. If you took part in any Law Day programs or mock trials in the past, please let us know about your experiences and how they may have assisted in shaping your legal career. Contact Filippo Conte at fconte@oba.org. Filippo Conte is the bilingual communications specialist and staff writer for the OBA. He brings his extensive background in linguistics, public relations and journalism to his role in OBA Francophone and communications activities as well as to managing special outreach programs (including Law Day) and social media initiatives.

Erik Opinaldo, whose photo “Let Your Colours Show” received honourable mention in this year’s Law Day Photography Contest, kindly assisted in capturing some special moments during the Law Day Closing and Awards included on this page.

June 2011 | Briefly Speaking • En Bref

Law DaY

From Junior High to Junior Associate Students Learn from OBA Counsel, and Vice Versa Stephen N. Libin On March 29th and 31st, high school students from across the Greater Toronto Area descended upon The Conference Centre at the OBA to participate in the Central West and Toronto regional mock trials of the OBA province-wide Secondary School Mock Trial Tournament. After two days of competition, Middlefield Collegiate Institute (Markham) and Mayfield Secondary School (Caledon) were selected from a field of 24 schools to compete against teams from across the province in the provincial championships held on April 14th - Law Day. Student teams of six (four playing the roles of counsel and two acting as witnesses) conducted the criminal trial of Alex Sebastian, a corrupt police officer accused of driving under the influence of drugs and alcohol. After a minor dental procedure in which he was administered an extra dose of anesthetic, Staff Sergeant Sebastian met a friend for a beer and something to eat. His car was soon spotted swerving through traffic before crashing into a light post. A hostile and disoriented Sebastian was found standing next to the scene of the collision.

“Often as junior litigators, we are encouraged to watch the more experienced members of the bar in action to see how advocacy is done ‘right’. But sometimes, it can be equally educational to see less experienced advocates make the mistakes that we are all likely to do. Who would have guessed I could learn so much from a dozen teenagers?” I was fortunate enough to have the opportunity to participate in the competition as part of a panel of three judges presiding over one trial. When I volunteered to judge the competition, I thought that this would be a good opportunity to encourage future advocates and give something back to the community; little did I know how much I would learn from the students. From opening remarks that were delivered effortlessly and without much reliance on notes, to examinations in chief that were punctuated with roadmaps and headings, the students from both schools were very well prepared.

However, the students also made some of the classic mistakes that junior counsel are regularly warned against. For exBriefly Speaking • En Bref | June 2011

ample, one member of the defense counsel excellently crossexamined the Crown’s witness, a journalist investigating the city’s corrupt police force. She asked a series of strong, closed questions that left me with the impression that the witness had a vendetta against the accused and that her evidence should be given less weight. Unfortunately, counsel asked the journalist to confirm that she had a bias against the accused. By doing so, the student inadvertently asked one question too many and gave the witness the chance to deny any bias and explain her prior comments. Another student took the approach of objecting at every opportunity possible. Leaping to his feet with a made-for-TV “I object!”, the student’s objections became increasingly less effective and more disruptive each time. Quickly, I found myself not wanting to agree with his objections (even when they were valid). It became clear to me that objections can be very effective but only if not overused.

Ultimately, our panel of three found itself having to render a verdict based on the evidence and a separate decision of which school would move on based on their respective advocacy skills. We found ourselves in an odd situation and concluded that the defendant was not guilty but that the team representing the Crown should progress to the next round of competition. This showed me that even good advocates can be brought down by bad facts. Stephen N. Libin is a litigation associate with Bennett Jones in Toronto.

On Law Day (April 14th), four teams competed in the semi-finals and finals of the OBA Ontario Secondary School Mock Trial Tournament. The final trial between Middlefield Collegiate Institute (Markham) and Assumption College School (Brantford) was held in the Superior Court of Justice in Toronto. The students presented their case fully gowned before Justices Otter, Molloy and McMahon from the Ontario Court of Justice and Superior Court respectfully. In a very well argued trial, Assumption CS was named the 2011 provincial champion—for the third year running. All of the participants and coaches should be commended for their hard work. It is clear that the future of our profession is in good hands.

OBA VOTES 2011 LSUC BEnChEr CAmpAign Congratulations to the 31 Winning oBa Candidates in the 2011 law society of upper Canada Bencher Elections Toronto

Outside Toronto

anand, raj Bredt, Christopher D. Callaghan, John E. Campion, John a. Dickson, Mary louise Falconer, Julian n. goldblatt, Howard Matheson, Wendy McDowell, William C. Mercer, Malcolm M. Minor, Janet E. Murchie, Barbara Pawlitza, laurie H. Porter, Julian rothstein, linda sandler, Mark J. schabas, Paul B. symes, Beth

Backhouse, Constance Braithwaite, Jack Conway, thomas g. Evans, robert F. Hartman, Carol lerner, Michael M. Maclean, M. Virginia Mcgrath, susan t. Potter, Judith M. Pustina, nicholas John scarfone, James a. sullivan, Joseph J. Wadden, robert

Fielding a Winning Team mEmBErShip in ThE OnTAriO BAr ASSOCiATiOn iT hAS iTS BEnEFiTS

June 2011 | Briefly Speaking â&#x20AC;˘ En Bref

Gala Awards

2011 ANNUAL AWARDS GALA In The OBA celebrated the 2011 Annual Awards Gala on May 5 at the Park Hyatt Hotel in Toronto. Recipients of the 2011 Award for Distinguished Service were honoured at the event with Joan Morris Hodgson Q.C. accepting on behalf her of her late husband John, who died last January at the age of 90. Heather McGee, now a Superior Court Judge and past president of the OBA, paid tribute to her family and her father and spoke fondly of the rewards of a life in public service. Briefly Speaking columnist Eugene Meehan was also the recipient of the Award for Distinguished Service. Here he is pictured with his sons—in case you were unsure, he’s the fellow in the middle.

THE OBA CELEBRATES WOMEN IN LAW The OBA reaffirmed its commitment to the equality rights of women with the OBA President’s Award being presented to the Women’s Legal Education and Action Fund (LEAF) with Executive Director Sheryl Hoshizaki accepting on behalf of the organization and expressing her gratitude for the OBA’s continued support. Another prominent advocate for women in law and a prolific writer, Constance Blackhouse received the Mundell Medal for legal writing. Completing this triptych of female honourees was Alayna Miller, who was recognized with the Linda Adlam Manning Award for Volunteerism.

Briefly Speaking • En Bref | June 2011

Les deux « Caron » : Accès à la justice et le statut constitutionnel du français Ghady Thomas and Amélie Lavictoire

Dans le jugement R. c. Caron, 2011 CSC 5, la Cour suprême du Canada a confirmé le pouvoir inhérent des cours supérieures de venir en aide à une cour provinciale en accordant une ordonnance de frais provisoire dans un dossier constitutionnel soulevant des questions fondamentales d’intérêt public lorsque le manque de ressources financières d’une des parties pourrait entraîner un déni de justice. L’intimé en Cour suprême, M. Gilles Caron, a été accusé d’avoir enfreint le Code de la route de l’Alberta. En guise de défense, M. Caron a invoqué l’inconstitutionnalité de la loi en question en raison du fait que celle-ci n’avait pas été rédigée, adoptée et publiée en français.

Malgré que la Loi linguistique de l’Alberta prévoit que les lois de la province sont valides malgré qu’elles aient toutes été rédigées, adoptées et publiées uniquement en anglais, M. Caron prétendait que certains droits linguistiques—notamment les droits législatifs et judiciaires—ont été garantis afin d’assurer l’adhésion de la Terre de Rupert et Territoires du Nord-Ouest à la Confédération canadienne. En étant reconnus dans la proclamation royale du 6 décembre 1869 et dans le décret de 1870, il est allégué que ces droits auraient acquis le statut de droits constitutionnels ne pouvant être abrogés par le biais d’une simple loi provinciale, en l’occurrence, la Loi linguistique. La Cour provinciale de l’Alberta a donné gain de cause à M. Caron mais la Cour du banc de la Reine a infirmé cette décision quant au statut constitutionnel du français en Alberta.

Le recours ayant pris une ampleur non prévue en raison de l’ampleur de la preuve historique et la preuve d’expert présentée et n’ayant pas les moyens de payer les frais inattendus occasionnés par le litige, M. Caron s’est adressé aux tribunaux de l’Alberta à au moins trois (3) reprises pour que ceux-ci rendent une ordonnance de provision pour frais qui obligerait le ministère public à verser les sommes nécessaires pour défrayer les honoraires d’avocats et d’experts engendrés par les procédures se déroulant devant la Cour provinciale. La Cour du banc de la Reine a conclu que, malgré que des frais provisoires n’avaient été accordés dans le passé que dans le contexte de litiges civils, ces genres de frais pouvaient également être accordés dans des causes quasi criminelles de nature exceptionnelle. La Cour du banc de la Reine a également conclu qu’elle possédait un pouvoir inhérent de venir en aide à la Cour provinciale qui était confrontée à une situation dans laquelle il surviendrait un déni de justice si des frais 26

provisoires ne pouvaient être accordés à M. Caron. Ainsi, la Cour a ordonné à la province de verser à M. Caron des frais provisoires (R. c. Caron, 2007 ABQB 632). La Cour d’appel de l’Alberta a confirmé l’ordonnance de provision pour frais en déclarant qu’une telle ordonnance peut être rendue lorsque la question véritable est une question constitutionnelle d’intérêt public.

La Cour suprême était du même avis et a reconnu qu’il est primordial que le litige sur le fond soit tranché de façon adéquate, et ce, dès maintenant. La Cour précise qu’il est dans l’intérêt public que les questions constitutionnelles linguistiques soulevées par M. Caron soient examinées par les tribunaux, car ces questions sont d’une grande importance juridique et historique. Ce recours constitue le premier dossier de droits linguistiques dans lequel une ordonnance de frais provisoires a été émise.

L’ordonnance de provision pour frais de la Cour du banc de la Reine confirmée par la Cour suprême, la contestation constitutionnelle poursuit présentement son cheminement devant les tribunaux albertains. La Cour d’appel de l’Alberta sera appelée à trancher deux questions : Est-ce que les lois de la province de l’Alberta doivent être imprimées et publiées en français et en anglais? Est-ce que la Loi linguistique de l’Alberta est ultra vires ou sans effet dans la mesure où elle abrogerait une obligation constitutionnelle qui incomberait à la province de l’Alberta de rédiger, imprimer et publier ses lois et règlements en anglais et en français?

Le recours présentement devant la Cour d’appel de l’Alberta soulève des questions constitutionnelles importantes en matière de langues officielles qui n’ont jamais été tranchées par les tribunaux et qui pourraient avoir d’importantes conséquences pour les franco-albertains et le gouvernement provincial. La Cour d’appel de l’Alberta—comme l’ont été la Cour provinciale et la Cour du banc de la Reine—sera appelée à analyser le contexte historique, politique et social de la période qui précède l’entrée de l’Alberta à la Confédération canadienne en vue de déterminer si la Loi linguistique de l’Alberta a pour effet d’abolir ou réduire la portée de droits linguistiques bénéficiant d’une protection constitutionnelle. June 2011 | Briefly Speaking • En Bref

A Tale of Two “Carons”: Access to Justice and the Constitutional Status of French Ghady Thomas and Amélie Lavictoire

In R. v. Caron, 2011 SCC 5, the Supreme Court of Canada confirmed that the superior courts have inherent power to render assistance to a provincial court by granting an interim costs order in a constitutional case that raises fundamental issues of public interest when one party’s lack of financial resources might lead to a miscarriage of justice.

Gilles Caron, the respondent in the Supreme Court, was charged with breaching the Alberta Highway Traffic Act. In his defence, Mr. Caron claimed that the law in question was unconstitutional, as it had not been written, enacted and published in French.

Although Alberta’s Languages Act provides that the laws of the province are valid despite having all been written, enacted and published exclusively in English, Mr. Caron claimed that certain language rights—in particular legislative and procedural rights —were guaranteed in order to ensure the admission of Rupert’s Land and the Northwest Territories into the Canadian Confederation. Having been recognized in the royal proclamation of December 6, 1869, and in the decree of 1870, it is argued that these rights acquired the status of constitutional rights, which cannot be abrogated by a mere provincial law, in this case the Languages Act. The Provincial Court of Alberta found in favour of Mr. Caron, but the Court of Queen’s Bench overruled this decision with regard to the constitutional status of French in Alberta. The appeal having become unexpectedly lengthy due to the volume of historical and expert evidence presented, and unable to pay the unanticipated costs that the case entailed, Mr. Caron applied to the Alberta courts at least three (3) times for an interim costs order that would require the Crown to pay the legal and expert fees resulting from the proceedings before the Provincial Court. The Court of Queen’s Bench found that, although interim costs had only been awarded in civil proceedings in the past, these types of costs could also be awarded in quasi-criminal cases of an exceptional nature. The Court of Queen’s Bench also found that it had the inherent power to render assistance to the Provincial Court, which was faced with a situation where there would be a miscarriage of justice if interim costs could

Briefly Speaking • En Bref | June 2011

not be awarded to Mr. Caron. As such, the Court ordered the province to pay Mr. Caron interim costs (R. v. Caron, 2007 ABQB 632). The Alberta Court of Appeal upheld the interim costs order, declaring that such an order may be rendered when the real issue is a constitutional issue of public interest. The Supreme Court was in agreement and noted that it was essential that the case on the merits be decided appropriately and immediately. The Court added that it is in the public interest for the constitutional language issues raised by Mr. Caron be examined by the courts, since these issues are of great legal and historical importance. This appeal was the first language rights case where an interim costs order was issued.

The interim costs order issued by the Court of Queen’s Bench having been upheld by the Supreme Court, the constitutional challenge is currently back before the Alberta courts. The Alberta Court of Appeal will be called upon to decide two issues: Must the laws of the province of Alberta be printed and published in English and in French? Is the Alberta Languages Act ultra vires or inoperable to the extent that it abrogates a constitutional obligation of the province of Alberta to write, print and publish its statutes and regulations in English and in French?

The appeal currently before the Alberta Court of Appeal raises important constitutional issues regarding official languages which have never been adjudicated by the courts and which could have significant consequences for Franco-Albertans and the provincial government. The Alberta Court of Appeal, much like the Provincial Court and the Court of Queen’s Bench, will be called upon to analyze the historical, political and social context of the period preceding Alberta’s entry into the Canadian Confederation in order to determine whether the Alberta Languages Act has the effect of revoking or reducing the scope of language rights that enjoy constitutional protection.

Just For Laughs

Now I Know We’re Not in Kansas Lessons from the Great and Mighty Oz Marcel Strigberger

I can watch The Wizard of Oz umpteen times. I saw it again recently and this time focused on a scene of great legal significance. You’ll recall that mean Myra Gulch pays a visit to Dorothy’s house and she declares that she has come to take their “vicious” dog Toto to the Sheriff to have him destroyed. Dorothy is beside herself and she says to Uncle Henry, “You won’t let her destroy Toto will you Uncle Henry?” Uncle Henry replies confidently, “Of course we won’t.”

Then Myra suddenly whips out a “Sheriff’s order” authorizing her to confiscate Toto forthwith. Not surprisingly Dorothy refuses to hand over the prisoner. Myra admonishes the family that they had better deliver Toto forthwith, “Unless you want to go against the law.”

Uncle Henry scans the order and after a puff of his pipe he nods stoically and says, “I’m afraid she’s right.” Vociferous protests by Dorothy who calls Myra Gulch an “ugly old witch” don’t get her to change her mind about her desired extinction of Toto. Uncle Henry reluctantly hands Toto to Gulch who carts him away in a basket. 28

After this sequence I did some thinking. Ex parte orders scare me, almost as much as barking dogs. I wondered if there was some provision in Kansas to set aside this order.

OZZIE J.: This is an Application by Dorothy Gale to set aside the ex parte order obtained by the respondent Myra Gulch from Twister County Sheriff, Charlie Farley.

The order was obtained pursuant to section 4 of the Dogs That Annoy Fine Folks Act.

Miss Gulch alleges Dorothy’s dog Toto frequently entered her garden and harassed her. When she recently politely asked Dorothy to remove Toto, the dog lunged at her biting Miss Gulch on the shin. The learned Sheriff, after hearing the evidence ordered the accused removed from the Gale residence and brought before him to be destroyed by means of a lethal injection.

June 2011 | Briefly Speaking • En Bref

Just For Laughs Dorothy alleges in an affidavit that Toto is a fine dog, really. She denies that Toto ever entered the garden and pleads that the complainant startled both her and Toto as they passed by when she suddenly jumped in front of them with her broom and cackled. An affidavit sworn by Auntie Emm alleges Myra Gulch feels she owns the entire county and for 23 years she has wanted to tell Myra Gulch a few things, but being a Christian woman she just couldn’t say them.

After reviewing all the evidence I find that Toto did indeed take a nibble of Myra Gulch’s shin. Not only did the complainant suffer physical pain but she was also forced to endure emotional trauma after the bite when Dorothy started singing. The question now is whether or not this order should have been sought with notice to Dorothy. And to Toto too. Section 17 of the Act provides as follows:

17. The Sheriff may issue the order without notice if: a) The dog or owner cannot be readily located; or

b) There is a likelihood that upon receiving such notice the respondents might abscond from the jurisdiction; or

c) There is a reasonable likelihood that upon receiving such notice that the dog might bite the Sheriff; or d) There is a reasonable likelihood that upon receiving such notice that the owner might bite the Sheriff.

There is no doubt that the original application fails to meet the first leg, so to speak. Both Dorothy and Toto could readily be found at the Gale residence talking to the farm animals.

There is some skimpy evidence with respect to subsection “b” applying. Myra Gulch insists that had they received notice, both Toto and Dorothy would have been out of here like a tornado. She claims that Dorothy was always singing to herself a weird song about being off to see the wizard.

I find that the order of the sheriff should not have issued without notice and I set it aside. I award costs to Dorothy; and to Toto too. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see www.legalhumour.com

Gulch argues that there was furthermore good reason to believe that provisions “c” or “d” were likely contingencies. I disagree. The evidence of Uncle Henry is that the Sheriff often came over to the Gale farm to pitch horseshoes with him. When they were done Toto then used to engage Charlie in a vigourous game of checkers over a plate of Auntie Emm’s fresh fudge. I cannot see how Toto would have bitten the Sheriff had he attended to serve him with papers. Perhaps he would have licked his hand. But that’s it. Nor is there evidence that Dorothy would have bitten the Sheriff. There are however strong suggestions that she may have bored him to tears by singing a song.

Briefly Speaking • En Bref | June 2011

June 2011 | Briefly Speaking â&#x20AC;˘ En Bref

Advocacy in action

Our Occupation is in Safe Hands The Ontario Bar Association, the legal profession and the health and safety of Ontario’s workplaces were all very well served by our April 12th presentation to the Standing Committee on General Government regarding Bill 160, The Occupation Health and Safety Statute Law Amendment Act. President Akazaki provided an excellent outline to the committee onthe OBA’s unique value to law reform—the ability to collect, understand and synthesize the perspectives of a very broad spectrum of clients including, in this case, unions, employers, constructors and employees . Mark Geiger and Carissa Tanzola of the OBA Labour and Employment Law Section made compelling arguments for amendments to the Act that would ensure consistency of regulation; avoid unnecessary expense for employers and workers and create a fair and effective process for dealing with the new inspector-referred reprisal cases at the Ontario Labour Relations Board.

The Forest and the Retirees

The OBA also made two important written submissions on diverse topics in April—the first on forestry resources legislation and the second on Pension Benefits Act regulations.

Kenning Marchant, the author of the OBA’s submission on Bill 151, The Ontario Forest Tenure Modernization Act, has acted as counsel on many large scale natural resources projects, including those involving partnerships with First Nations. Our submission advocated for amendments to the legislation that would provide for Natural Justice, including the necessity for notice and an opportunity to respond where foresting rights are being cancelled or altered. In accordance with our submissions, the legislation was amended at committee to include both a notice requirement and a right to respond. The Family Law and Pensions & Benefits Sections worked very closely together to provide assistance to the Ministry of Finance in finalizing the “Draft Regulation Regarding Pension Asset Division on marriage Breakdown.” Significant effort went into ensuring that the technicalities of the pension regime would work in the family-law context. It is expected that the Ministry will finalize the regulation in the spring. Briefly Speaking • En Bref | June 2011

Making a Difference: The OBA has the following task forces hard at work:

1. The Task Force on Family Shares in Legal Professional Corporations will advocate on behalf of lawyers to amend the Ontario Business Corporations Act to allow lawyers in a professional corporation to split their income with family members.

2. The Task Force on Judicial Mediation is looking at the many aspects of this emerging trend, including procedural requirements, improving access to justice and the need for facilitative expertise.

To allow for direct input from our practice sections, the OBA will host two tribunal chairs this spring:

1. The chair of the Canadian Human Rights Tribunal will speak about, and invite input on, proposed alternative dispute resolution procedures ; and

2. Michael Gottheil , the new executive chair of the Social Justice Cluster, will discuss procedural issues in the Ontario Human Rights Tribunal and the other tribunals under his auspices.

The OBA continues to work closely with The Law Commission of Ontario (LCO) on large law reform projects: 1. Sean Kennedy continues his work as a member of the Expert Panel on Vulnerable Workers; and 2. Craig Vander Zee, chair of the OBA Trusts and Estates Section, has joined an expert panel that will advise the LCO on its Older Adult Project.

Elections, Elections and (One) More Election

With Law Society Convocation and federal MPs settling into their seats, it’s time for the OBA to focus on this fall’s Ontario election. We will make sure the concerns of our members are in the hearts and minds of candidates. Stay tuned! 31

Bencher Election

Bencher Election Meet & Greet In April 2011, the OBA hosted a reception for the association’s candidates in the Law Society of Upper Canada Bencher Elections. Members and candidates discussed prevalent issues in the province’s legal community and considered who should serve to govern the profession. Of 40 available seats, the OBA is proud to congratulate the 31 members who were elected. Well done!

June 2011 | Briefly Speaking • En Bref

Bencher Election

Briefly Speaking â&#x20AC;˘ En Bref | June 2011

Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

he following is a summary of all appeals and all leaves to appeal (ones granted—so you know what areas of law the S.C.C. will soon be dealing with). For leaves I’ve specifically included both the date the S.C.C. granted leave and the date of the C.A. judgment below. Supreme Court of Canada Update

APPEAL JUDGMENTS ARBITRATION: CLASS ACTIONS; STAY OF PROCEEDINGS

er transaction that gives rise to the action, may bring an action in Supreme Court”. CRIMINAL LAW: HOMICIDE JURY QUESTIONS

Seidel v. TELUS Communications Inc. (B.C.C.A., March 13, 2009) (33154) March 18, 2011 The S.C.C. took a generalized view that:

• the choice to restrict or not to restrict arbitration clauses in consumer contracts is a matter for the legislature

• absent legislative intervention, the courts will generally give effect to the terms of a commercial contract freely entered into, including an arbitration clause.

Most specifically, the S.C.C. held that s. 172 claims and certification proceedings may be pursued, but other claims are obliged to go to arbitration. (s. 172, of the BC Business Practices and Consumer Protection Act: “a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consum34

R. v. Miljevic (Alta. C.A., Dec. 17, 2010) (33714) Feb. 16, 2011

The trial judge was upheld by the S.C.C. in the following circumstances: • the jury had asked the trial judge to explain the difference between manslaughter and second degree murder, to provide examples, and to provide a specific definition of manslaughter • the judge responded to the questions but did not provide examples or a definition of manslaughter

• the judge declined to give the jury examples for fear that they would not make the difference between murder and manslaughter any clearer

• he explained to the jury that each case is driven by its own June 2011 | Briefly Speaking • En Bref

Supreme Court of Canada Update facts, and the facts of one case or one example might not truly help them

• he also told them there is no specific definition of manslaughter in the Criminal Code, but he could help them by saying that the killing in this case was either murder or manslaughter and that if the appellant was not proved to have had the mental state required for murder, then the killing is manslaughter. CRIMINAL LAW: SEXUAL ASSAULT

R. v. J.A.A. (Ont. C.A., July 9, 2010) (33782) April 8, 2011

The advance notice by the SCC for this appeal (issued April 5, 2011) stated: “Publication ban in case”. The judgment that just came down does not so state. Given the nature of the case, and to be completely safe, no summary on this particular case this morning. The generalized issues in this appeal deal with postoffence demeanour, whether police officers can give lay evidence as to wounds being bite wounds or whether that evidence has to be adduced by an expert (such as a forensic dentist). The hyperlink for the case is immediately below.

of racism or discrimination, and is not the appropriate recourse in this particular case. CONSTITUTIONAL LAW: FEDERAL-PROVINCIAL COSTSHARING AGREEMENT

Québec (Attorney General) v. Canada (Fed. C.A., December 9, 2009) (33524) March 3, 2011

Social services provided in schools were not part of the Canada Assistance Plan, and residential support services provided to persons with disabilities were cost-shared under a separate Act of Parliament. CHARTER: EQUALITY; DISCRIMINATION BASED ON AGE

Withler v. Canada (Attorney General) (B.C.C.A., December 23, 2008)( 33039) March 4, 2011

It is constitutionally not discriminatory for federal statutes to reduce supplementary death benefits to widows based on the age of their husbands at the time of death. CRIMINAL LAW: (MILITARY) SENTENCING

FAMILY LAW: COMMON LAW SPOUSES

Kerr v. Baranow (B.C.C.A.) (33157) Vanasse v. Seguin (Ont. C.A.) (33358) Feb. 18, 2011 The S.C.C. held the following:

• the “common intention” approach to resulting trust has no further role to play in the resolution of property claims by domestic partners on the breakdown of their relationship

• where both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality; the remedy in these circumstances “should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help”

• many domestic relationships involve the mutual conferral of benefits, in the sense that each contributes in various ways to the welfare of the other; this issue should, (with a small exception), be addressed at the defence and remedy stage • the parties’ reasonable or legitimate expectations have a limited role, and must be considered in relation to whether there is a juristic reason for the enrichment.

CLASS ACTIONS IN QUEBEC: DEFAMATION

Bou Malhab v. Diffusion Métromédia CMR inc. (Que. C.A., Dec. 15, 2009) (32931) Feb. 17, 2011 A defamation action is not the appropriate recourse in all cases Briefly Speaking • En Bref | June 2011

R. v. St-Onge (Court Martial Appeal Court of Canada, August 20, 2010) (33864) April 1, 2011

The appeal in this case, brought under s. 245(2)(a) of the National Defence Act is a proper as of right appeal. It was not open to the C.A. below to interfere with the trial judge’s decision, the C.A. is overturned, and the trial judge upheld. CRIMINAL LAW: POST-OFFENCE CONDUCT JURY CHARGES R. v. White (B.C.C.A., May 10, 2010) (33464) March 11, 2011 He who hesitates is guilty, of manslaughter, not murder.

LEAVE TO APPEALS GRANTED CIVIL PROCEDURE: ISSUE ESTOPPEL In the context of someone arrested for causing a disturbance in court during a trial, is there issue estoppel when the following hearings/tribunals dealt with the matter?: Hearing officer appointed under the Police Services Board; Civilian Commission on Police Services; Divisional Court; Ontario Superior Court; Ontario C.A. Wayne Penner v. Regional Municipality of Niagara Regional Police Services Board, Gary E. Nicholls, Nathan Parker, Paul Koscinski and Roy Federkow (Ont. C.A., September 27, 2010) (33959) March 24, 2011 COMMUNICATIONS LAW: DO ISPs “BROADCAST”?

Do retail ISPs carry on, in whole or in part, “broadcasting undertakings” subject to the federal Broadcasting Act, when, in 35

Supreme Court of Canada Update their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

Lamoureux, et al (Que. Ct. (Crim. & Penal Div.), September 15, 2010) (33970) March 31, 2011

CONSTITUTIONAL LAW: DIVISION OF POWERS

What is the legal status of a police informant in the context of an organized crime network?

Alliance of Canada Cinema, et al v. Bell Aliant Regional Communications, et al (Fed. C.A., July 7, 2010) (33884) March 24, 2011 Where a business rents cranes for various purposes, including loading and unloading ships, also engages in road transportation, maintains and repairs equipment, is this a federal or a provincial jurisdiction?

CRIMINAL LAW: INFORMER PRIVILEGE

B v. Her Majesty the Queen et al (Que. S.C.J., September 17, 2010) (34053) March 24, 2011 CRIMINAL LAW: SEX WORKERS

Tessier Ltée v. Commission de la santé et de la sécurité du travail– and–Commission des lésions professionnelles (Que. C.A., September 13, 2010) (33935) March 24, 2011

Are the sex worker provisions in the Criminal Code constitutional?

Are royalties payable where ISPs provide consumers with means to access websites for online music service providers?

FAMILY LAW IN QUEBEC: COMMON LAW SPOUSES

Rogers Communications Inc. et al v. Society of Composers, Authors and Music Publishers of Canada (Fed. C.A., September 2, 2010) (33922) March 24, 2011 COPYRIGHT: ONLINE VIDEO, GAMES & MUSIC

Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society, Sheryl Kiselbach (B.C.C.A., October 12, 2010) (33981) March 31, 2011 What are the rights duties and obligations arising from living common law in Quebec?

Attorney General of Quebec v. A et al; B v. A et al; A v. B et al (Que. C.A., November 3, 2010) (33990) March 24, 2011 MUNICIPAL LAW: TAXING FEDERAL BUILDINGS

Are royalties payable where interactive software products (primarily video and computer games) provide consumers with the means to access websites? Entertainment Software Association et al v. Society of Composers, Authors and Music Publishers of Canada (Fed. C.A., September 2, 2010) (33921) March 24, 2011

What is the proper municipal tax assessment for federal buildings?

Halifax Regional Municipality v. Her Majesty the Queen in Right of Canada, as represented by the Minister of Public Works and Government Services (Fed. C.A., July 21, 2010) (33876) Feb. 24, 2011 TAX: GST

CRIMINAL LAW: DISOBEYING COURT ORDERS

Can one be charged with disobeying a court order when one displays a protest sign within 60 ft of a clinic in breach of an interlocutory injunction?

Linda Gibbons v. Her Majesty the Queen (Ont. C.A., January 29, 2010) (33813) Feb. 17, 2011 CRIMINAL LAW: HIJAB/NIQAB IN COURT

In what circumstances can (or cannot) a hijab (a full body dress) or a nijab (a veil which covers the entire face except the eyes) be worn in court?

N.S. v. Her Majesty the Queen, M--d.S., M--l.S. (Ont. C.A., October 13, 2010) (33989) March 17, 2011

What is a proper priority for a GST claim in a bankruptcy situation?

Toronto-Dominion Bank v. Her Majesty the Queen (Fed. C.A., June 30, 2010) (33878) March 24, 2011 TAX: PHARMACEUTICALS

Is the price paid by other pharmaceutical companies selling generic versions of a drug, a reasonable amount on which to base tax payable? Her Majesty the Queen v. GlaxoSmithKline Inc. (Fed. C.A., July 26, 2010) (33874) March 24, 2011

CRIMINAL LAW: IMPAIRED; CONSTITUTIONALITY

Are the impaired provisions of the Criminal Code constitutional?

Eugene Meehan, QC, is a partner with McMillan LLP in Ottawa. eugene.meehan@mcmillan.ca

Her Majesty the Queen, Attorney General of Quebec v. Anic St-Onge

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